Defaults.

Practice point: Under CPLR 5015(a)(4), a default must be vacated once a movant demonstrates lack of personal jurisdiction.

Student note: A party who moves to vacate a judgment entered on default is relieved of any obligation to demonstrate a reasonable excuse for the default and a potentially meritorious defense when lack of personal jurisdiction is asserted as the ground for vacatur.

Case: Toyota Motor Credit Corp. v. Lam, NY Slip Op 01809 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Vehicle owner’s liability.

Tenants-in-common.

Practice point: The presumption that tenants-in-common share equally in their common tenancy may be rebutted if the facts show that they hold the tenancy in unequal shares. A court acting in equity may take into account the amounts invested in the property by the respective tenants in determining the shares to which they are entitled.

Student note: In making this determination, the court must consider the various equities, including the nature of the parties' relationship, and whether any or all of these contributions were repaid or intended to be a gift.

Case: McGuire v. McGuire, NY Slip Op 01802 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Defaults.

Adverse possession.

Practice point: A party seeking to obtain title must prove by clear and convincing evidence the following common-law requirements: that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4) it was exclusive; and (5) it was continuous for the statutory period of 10 years.

Student note: Hostile possession does not require a showing of enmity or specific acts of hostility. All that is required is a showing that the possession constitutes an actual invasion of or infringement upon the owner's rights. Consequently, hostility may be found even though the possession occurred inadvertently or by mistake.

Case: Kelly v. Bastianic, NY Slip Op 01798 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Tenants-in-common.

Collateral estoppel.

Practice point: The doctrine bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues raised in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling.

Student note: A decision upon which no formal order or judgment has been entered lacks the conclusive character necessary to invoke the doctrine.

Case: Egbert Sq. Realty, LLC v. 112-114 Corp., NY Slip Op 01794 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Adverse possession.

Primary assumption of risk.

Practice point: A voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.

Student note: This includes risks associated with the condition of the surface on which the activity is performed, and any open and obvious condition thereon. If the risks are known by or perfectly obvious to the participant, he or she is deemed to have consented to them, and the property owner has discharged its duty of care by making the conditions as safe as they appear to be.

Case: Nigro v. New York Racing Assn., Inc., NY Slip Op 01660 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Collateral estoppel

Legal malpractice.

Practice point: The plaintiff must establish that the defendant-attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.

Student note: To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action, or would not have incurred any damages, but for the attorney's negligence.

Case: Island Props. & Equities, LLC v. Cox, NY Slip Op 01656 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Primary assumption of risk.

Sanctions.

Practice point: To support a determination of sanctions pursuant to CPLR 3126, the moving party must demonstrate that the responsible party's actions were willful and contumacious.

Student note: Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading.

Case: Falcone v. Karagiannis, NY Slip Op 01653 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Legal malpractice.

Hearsay and interrogatories.

Practice point: Under the "speaking authority" exception to the hearsay rule, an employee's comments can be binding on an employer if the plaintiff submits evidence in admissible form establishing that the employee's statement was made within the scope of the employee's authority to speak for the employer.

Student note: Interrogatory responses may be used by any party for the purpose of impeaching the credibility of a deponent as a witness, pursuant to CPLR 3117[a][1] and 3131.

Case: Dank v. Sears Holding Mgt. Corp., NY Slip Op 01648 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Sanctions.

Caveat emptor.

Practice point: New York adheres to the doctrine, and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arms length, unless there is active concealment.

Student note: For concealment to be actionable as fraud, the plaintiffs must show that the defendants thwarted the plaintiffs' efforts to fulfill their responsibilities imposed by the doctrine.

Case: Camisa v. Papaleo, NY Slip Op 01645 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Hearsay and interrogatories.

Affidavits in support of summary judgment motions.

Practice point: CPLR 3212(b) requires that a motion for summary judgment must be supported by, among other things, an affidavit by someone with personal knowledge of the facts.

Student note: Notwithstanding this requirement, where a moving party supports the motion with an attorney's affirmation, deposition testimony, and other proof, the failure to submit an affidavit is not necessarily fatal.

Case: Maragos v. Sakurai, NY Slip Op 01592. (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Caveat emptor.

Demands for a complaint.

Practice point: To avoid dismissal for failing to timely serve the complaint after a demand has been made pursuant to CPLR 3012(b), and to be entitled to an extension of time to serve the complaint under CPLR 3012(d), a plaintiff must demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action.

Student note: Plaintiff’s failure to provide an affidavit of merit from a person possessing personal knowledge of the facts underlying the action will result in a denial of plaintiff’s motion to extend the time to serve.

Case: Country Serv., Inc. v. Feiden & Assoc., P.C., NY Slip Op 01586 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Affidavits in support of summary judgment motions.