Construing a lease.

Practice point: A proprietary lease is a valid contract that must be enforced according to its terms, and, in the interpretation of leases, the same rules of construction apply as are applicable to contracts generally.

Student note: The court found that, contrary to the co-op's arguments, none of the provisions upon which it relied supported a basis upon which it can recover, from the proceeds of the sale of the apartment, its costs for security services.

Case: Himmelberger v. 40-50 First Rd. Apts. Corp., NY Slip Op 02636 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Capacity to sue.

Bus injury cases.

Practice point: To establish a prima facie negligence case for a passenger’s injuries sustained as a result of the movement of the bus, the plaintiff must establish that the movement consisted of a jerk or lurch that was unusual or violent.

Student note: Proof that the stop was unusual or violent must consist of more than a mere characterization of the stop in those terms by the plaintiff. There must be objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the defendant’s negligence.

Case: Gioulis v. MTA Bus Co., NY Slip Op 02632 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Construing a lease.

Dismissal based on documentary evidence.

Practice point: A party seeking dismissal pursuant to CPLR 3211(a)(1), on the ground that its defense is founded upon documentary evidence, has the burden of resolving all factual issues as a matter of law, and conclusively disposing of the plaintiff's claim.

Student note: Affidavits do not constitute documentary evidence for the purposes of the motion to dismiss.

Case: Flushing Sav. Bank v. Siunykalami, NY Slip Op 02629 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Bus injury cases.

Premises security cases.

Practice point: The necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance.

Student note: While the plaintiff claimed that the defendants should have provided her with a deadbolt lock in addition to the kitchen door lock she purchased herself, she failed to submit any evidence that the original lock provided by the landlord, which she replaced, had not functioned properly or that the original lock did not constitute a minimal security measure adequate to protect her from foreseeable harm.

Case: Ferguson v. Antaeus Realty Corp., NY Slip Op 02628 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Dismissal based on documentary evidence.

Premises liability cases.

Practice point: A defendant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Student note: Although the presence of a loaded gun may constitute a dangerous condition, the mere presence of a gun in the defendant's house was not sufficient to establish, as a matter of law, the defendant's liability founded on the presence of a dangerous condition, absent proof that the defendant had actual or constructive knowledge that the gun was loaded.

Case: Abrams v. Berelson, NY Slip Op 02618 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Premises security cases.

Laches.

Practice point: The defense is unavailable to the claims of breach of contract, breach of fiduciary duty, and for the return of management fees.

Student note: Although brought together as a derivative action, these causes of action are not equitable in nature.

Case: Garber v. Stevens, NY Slip Op 02437 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Premises liability cases.

Construing a guaranty.

Practice point: Although the guaranty was only for the first two years of the lease, the court awarded the landlord the entire accelerated rent amount through the end of the six year lease term. This did not subject the individual guarantor to a greater obligation than he intended or offend the rule of strict construction of guaranties.

Student note:The possibility of acceleration was in the lease that the guarantor signed, and tenant's default in rent and the acceleration took place within the period of the guaranty.

Case: Hawthorne Gardens, LLC v. Salman Home, Inc., NY Slip Op 02436 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Laches.

Summary judgment motions.

Practice point: Summary judgment is not warranted where credible evidence reveals differing versions of the accident.

Student note: While hearsay statements may be used to oppose the motion, such evidence is insufficient to warrant the motion's denial where it is the only evidence submitted in opposition.

Case: Taylor v. One Bryant Park, LLC, NY Slip Op 02427 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Construing a guaranty.

Assumption of the risk.

Practice point: The doctrine does not exculpate a landowner from liability for ordinary negligence in maintaining a premises.

Student note: Here, however, defendants established as a matter of law that the uneven condition of the soccer field’s artificial turf was open and obvious, and was not the result of defendants' negligence in maintaining the field.

Case: Benolol v. City of New York, NY Slip Op 02426 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Summary judgment motions.

Striking a pleading.

Practice point: While CPLR § 3126 authorizes the striking of a party's pleadings, this extreme sanction is only authorized when a party refuses to obey an order for disclosure or willfully refuses to disclose information which the court finds ought to have been disclosed.

Student note: Here, where plaintiff had already been sanctioned for its failure to provide discovery and where defendants premised their motion to strike primarily on plaintiff's failure to proceed with court-ordered mediation, CPLR § 3126 does not apply.

Case: Carnegie Assoc. Ltd. v. Miller, NY Slip Op 02422 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Assumption of the risk.

Probative value.

Practice point: An attorney’s affirmation or a witness’ affidavit which is not based on personal knowledge is of no probative or evidentiary value.

Student note: Similarly, an alleged expert’s letter, unsworn and without specifying the writer’s qualifications, is not evidentiary material in admissible form, and is of no probative value.

Case: Currie v. Wilhouski, NY Slip Op 02281 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Striking a pleading.