Motion to dismiss based on a failure to state a cause of action.

Practice point:  In reviewing a motion to dismiss pursuant to CPLR 3211(a)(7), the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note: Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action.

Case: Rozell v. Milby, NY Slip Op 06133 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Arbitration awards.

Motion to dismiss based on documentary evidence.

Practice point: A motion to dismiss based on documentary evidence, pursuant to CPLR 3211(a)(1), may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Student note: In order to be considered documentary evidence within the meaning of CPLR 3211(a)(1), the evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable.

Case: Norment v. Interfaith Ctr. of N.Y., N.Y. Slip Op 06130 (2d. Dept. 2012).

Here is the decision.

Monday’s issue: Motion to dismiss based on a failure to state a cause of action.

Collateral estoppel.

Practice point: Collateral estoppel preserves party and judicial resources by preventing relitigation of matters that have already been resolved. It prevents inconsistent results, and it can be asserted in a new case by a nonparty to the original proceeding.

Student note: Moreover, collateral estoppel principles apply as well to awards in arbitration as they do to adjudications in judicial proceedings.

Case: Feinberg v. Boros, NY Slip Op 06114 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion to dismiss based on documentary evidence.

Stating a 241(6) Labor Law claim.

Practice Point: To state a claim under § 241(6), a plaintiff must identify a specific Industrial Code provision mandating compliance with concrete specifications.

Student note: The statute imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation, or demolition work is being performed.

Case:  Capuano v. Tishman Constr. Corp., NY Slip Op 06109 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Collateral estoppel

Stay of the proceedings.

Practice point: Except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just, pursuant to CPLR 2201.

Student note: A court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof, and the potential waste of judicial resources.

Case: HSBC Bank USA, N.A. v. Posy, NY Slip Op 06125 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Stating a 241(6) Labor Law claim.

Adverse possession.

Practice point: To prevail on a claim of adverse possession, the defendants were required to establish that their possession of the disputed portion was (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period.

Student note: Moreover, inasmuch it was under claim of title not written, the defendants were required to establish that they usually cultivated or improved the disputed portion or that they protected it by a substantial inclosure.

Case: Tolake Corp. v. Altobello, NY Slip Op 06071 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Stay of the proceedings.

Discovery demand for medical records.

Practice point: A party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue.

Student note: However, a party does not waive the physician-patient privilege with respect to unrelated illnesses or injuries.

Case: Romance v. Zavala, NY Slip Op 06067 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Adverse possession.

Fraud, and the summary judgment burden.

Practice point: The essential elements of a cause of action sounding in fraud are a misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it; justifiable reliance of the other party on the misrepresentation or material omission; and injury.

Student note: A party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense.

Case: River Ridge Living Ctr., LLC v. ADL Data Sys., Inc., NY Slip Op 06066 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Discovery demand for medical records.

Preliminary injunction.

Practice point: To obtain a preliminary injunction, a movant must establish (1) a likelihood of success on the merits; (2) irreparable injury absent a preliminary injunction; and (3) a balancing of the equities in the movant's favor,

Student note: Irreparable injury, for purposes of equity, has been held to mean any injury for which money damages are insufficient.

Case: L & M Franklyn Ave, LLC v. S. Land Dev., LLC, NY Slip Op 06064 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Fraud, and the summary judgment burden.

Motion for leave to renew or reargue.

Practice point: A motion for renewal must be based upon new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221[e][2]. A motion for reargument must be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion, pursuant to CPLR 2221[d][2]). Further, even where a motion for reargument is technically untimely under CPLR 2221[d][3], a court has discretion to reconsider its prior ruling, pursuant to CPLR 2004.

Student note: A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court.

Case: HSBC Bank USA, N.A. v. Hall, NY Slip Op 06063 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Preliminary injunction.

Law of the case.

Practice point: The doctrine is a rule of policy and practice to ensure that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned.

Student note: The doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision, and to the same questions presented in the same case.

Case: Erickson v. Cross Ready Mix, Inc., NY Slip Op 06062 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion for leave to renew or reargue.