Assault, and whether words alone rise to the level.

Practice point: To plead a cause of action to recover damages for assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent apprehension of harmful contact.

Student note: While an action for an assault need not involve physical injury, but only a grievous affront or threat to the person of the plaintiff, words, without some menacing gesture or act accompanying them, ordinarily will not be sufficient to state a cause of action.

Case: Gould v. Rempel, NY Slip Op 06779 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Contractor liability.

Defamation.

Practice point: The cause of action sounding in defamation was dismissed, pursuant to CPLR 3211(a)(1), because defendant’s documentary evidence established conclusively that the plaintiff, in a matrimonial action, consented to the admission of the court-ordered report.

Student note: An essential element of a defamation claim is that the alleged defamatory statement was published without privilege or authorization.

Case: Baker v. Inamdar, NY Slip Op 06770 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Assault, and whether words alone rise to the level.

Vacating a dismissal order.

Practice point: To vacate the dismissal order and restore the action to the trial calendar, a plaintiff is required to demonstrate both a reasonable excuse for the default in proceeding with trial and a potentially meritorious cause of action, pursuant to CPLR 5015[a][1].

Student note: Here, where the plaintiffs' trial attorney was actually engaged in another matter on the scheduled trial date, and this was his first request for an adjournment, the plaintiffs demonstrated a reasonable excuse for the default, notwithstanding the technical defect in counsel's affirmation of engagement. In addition, the affidavit of merit provided by the plaintiffs' medical expert was sufficient to establish the existence of a potentially meritorious cause of action.

Case: Piper-Rader v. Muslim, NY Slip Op 06592 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Defamation.

Motion to dismiss for failure to serve and file a note of issue, and preclusion from testifying at trial.

Practice point: The complaint was not dismissed on the grounds that plaintiff defied the court's order to serve and file a note of issue because, although court orders may constitute a written demand to serve and file a note of issue under CPLR 3216(b)(3), the order here did not give plaintiff the required 90 days to serve and file a note of issue, or contain a statement that failure to timely do so would serve as a basis for a motion to dismiss.

Student note: Plaintiff was precluded from testifying at trial because of an irresponsible approach to discovery. Plaintiff failed to appear on the court-ordered date for deposition, despite defendants' attempts to confirm her availability before the deposition date; never apprised the court of her inability to be deposed that day, despite clear directives to do so in the preliminary conference order; never explained her failure to do any of the foregoing; and failed to timely respond to interrogatories by the discovery deadline, despite multiple requests to do so.

Case: Mehta v. Chugh, NY Slip Op 06645 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Vacating a dismissal order.

Motion for leave to amend a pleading and motion to dismiss.

Practice point: A motion for leave to amend a pleading should be freely granted in the absence of prejudice or surprise resulting directly from the delay, unless the amendment would be palpably insufficient or patently devoid of merit, pursuant to CPLR 3025[b]. Here, the defendant had not moved before serving his answer to dismiss the complaint on the ground of lack of standing, and he did not raise the defense of lack of standing in his answer. By not raising the defense at that time, he failed to put the plaintiff on notice of the defense at a time the plaintiff could have cured any defect by promptly recommencing the action. The defendant failed to oppose the plaintiff's motion for summary judgment on the complaint, and he waited more than seven additional months after the motion for summary judgment had been granted before moving for leave to amend his answer to assert the defense of lack of standing. Under these circumstances, the branch of the motion for leave to amend the answer was denied.

Student note: For the same reasons, the branch of the motion to dismiss the complaint for lack of standing was denied.

Case: HSBC Bank USA v. Philistine, NY Slip Op 06580 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion to dismiss for failure to serve and file a note of issue, and preclusion from testifying at trial.

General contractors' and owners' liability for accidents.

Practice point: A general contractor may be liable in common-law negligence and under Labor Law § 200 if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it. An owner's duty to provide a safe place to work encompasses the duty to make reasonable inspections, and the question of whether the danger should have been apparent upon visual inspection is generally a question of fact.

Student note: Constructive notice may be imputed to the general contractor if the dangerous condition is visible and apparent and existed for a sufficient length of time prior to the accident to permit the general contractor to discover it and remedy it. 

Case:  McLean v. 405 Webster Ave., Assoc., NY Slip Op 06286 (2d Dept. 2012). 

Here is the decision. 

Tomorrow's issue: Motion for leave to amend a pleading and motion to dismiss.

Court holiday.

The courts are closed today to mark Columbus Day.

Tomorrow's issue is general contractors' and owners' liability for accidents.

Awarding possession of the marital residence.

Practice point: Exclusive possession of the marital residence is usually granted to the spouse who has custody of the minor children of the marriage.

Student note: In making the determination, the court will weigh the need of the custodial parent to occupy the marital residence against the financial need of the parties.

Case: Greisman v. Greisman, NY Slip Op 06280 (2d Dept. 2012).

Here is the decision.

Tuesday’s issue: General contractors’ and owners’ liability for accidents.

A landowner's liability for criminal conduct.

Practice point: Owners of residential developments have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including a third party's foreseeable criminal conduct.

Student note: There is foreseeable danger when past experience alerts the landlord to the likelihood of criminal conduct on the part of third persons

Case: Diaz v. Sea Gate Assn., Inc., NY Slip Op 06276 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Awarding possession of the marital residence.

Appellate practice.

Practice point: No appeal lies from a judgment made upon the default of the appealing party, pursuant to CPLR 5511.

Student note: As a general rule, the Appellate Division does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so.

Case: Asman v. Durst, NY Slip Op 06272(2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: A landowner’s liability for criminal conduct.

Agreements to waive claims.

Practice point: Parties to arm's-length transactions may agree to waive claims based on personal liability.

Student note: Contractual provisions that absolve a party of its own negligence are enforceable, absent evidence of gross negligence.

Case: 261 E. 78th Realty Corp. v. Bernstein, NY Slip Op 06260 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Appellate practice.