Arbitration clauses.

Practice point: Defendants did not waive the right to arbitrate by merely serving 
an answer and opposing plaintiff's motion.

Student note: The issue of whether an anti-dissolution provision in an LLC's operating agreement violates public policy does not fall into any of the categories of matters that cannot be arbitrated.

Case: SSM Realty Group, LLC v. 20 Sherman Assoc., LLC, NY Slip Op 08408 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Motion for judgment as a matter of law.

Pleading fraud with particularity, and punitive damages.

Practice point: While plaintiffs' claim that defendants used the contract as a cover for a fraudulent billing scheme stated a fraud claim separate from the contract claim, plaintiffs failed to specify which invoices are inflated. Therefore, the claim lacked the particularity required by CPLR 3016. However, plaintiffs were given leave to replead this part of their complaint, since the claim is otherwise meritorious on its face.

Student note: Plaintiffs' allegations of a run-of-the-mill commercial dispute, involving only these parties, does not rise to the standard necessary to recover punitive damages.

Case: Lax v. Design Quest N.Y. Ltd., N.Y. Slip Op 08406 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Arbitration clauses.

Res judicata and collateral estoppel.

Practice point: The claim in the wrongful death action at issue here did not arise from the same or related transactions as the claim in the Surrogate's Court turnover proceeding. Thus, the remaining claim for conscious pain and suffering in the wrongful death action is not barred by the principle of res judicata. 

Student note: Similarly, that remaining claim is not barred by the principle of collateral estoppel because the issues raised in the claim were not addressed, either in theory or in fact, in the Surrogate's Court proceeding.

Case: Lind v. Greenspan, NY Slip Op 08404 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Pleading fraud with particularity, and punitive damages.

Easements by prescription.

Practice point: An easement by prescription is demonstrated by proof of the adverse, open and notorious, and continuous use of the subject property for the prescriptive period.

Student note: Where the plaintiff demonstrates, by clear and convincing evidence, the open and notorious, continuous, and undisputed use of the subject property, it is presumed that the use was adverse, and the burden shifts to the opponent of the alleged prescriptive easement to show that the use was permissive.

Case: Ducasse v. D’Alonzo, NY Slip Op 08090 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Res judicata and collateral estoppel.

Stipulations.

Practice point: Oral stipulations entered into in open court by counsel on behalf of their clients are binding, pursuant to CPLR 2104.

Student note: Stipulations of settlement are favored by the courts and not lightly cast aside . A party will be relieved from the consequences of a stipulation made during litigation only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident.

Case: Caroli v. Allstate Ins. Co., NY Slip Op 08086 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Easements by prescription.

Admissibility of third-party business records.

Practice point: The court admitted into evidence certain third-party business records pursuant to the party admission exception to the hearsay rule. The documents were bills of lading generated by defendant's agent, a stevedore, in the course of its duties for defendant, and were therefore receivable against defendant.

Student note: The documents were also admissible as third-party business records. While no representative of the stevedore testified as to the foundation for their introduction into evidence, the bills of lading were created in the agent's performance of its contractual duties and therefore were sufficiently reliable to be admissible without such testimony.

Case: K & K Enters., Inc. v. Stemcor USA Inc., NY Slip Op 07394 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Stipulations.

Motion for leave to renew.

Practice point: Defendants' motion for leave to renew their motion to vacate an order and ensuing judgment entered on default was denied because the self-styled “new facts" submitted on renewal in the form of affidavits of merit could have been submitted on the prior motion to vacate the default judgment, and defendants failed to offer a reasonable justification for the failure to do so, pursuant to CPLR 2221[e][3].

Student note: Defendants’ claim that their former counsel mistakenly made the prior motion pursuant to CPLR 2221, which did not require the submission of an affidavit of merit, was undermined by counsel's identification of the motion as one to vacate a prior order and judgment.

Case: DC Media Capital LLC v. Sivan, NY Slip Op 07391 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Admissibility of third-party business records.

Liability for a fall down a winding staircase.

Practice point: Plaintiff allegedly was injured in a fall down defendant-premises owner’s winding staircase. Summary judgment was denied because the owner had a duty to maintain the property in a reasonably safe condition, and the configuration of the winding staircase and the partial absence of a handrail at its turn raise triable issues as to whether defendants were on constructive notice of a dangerous condition.

Student note: There was no triable issue as to whether the stairs were in violation of Administrative Code of City of NY § 27-375(e)(4) and (f). The stairs are not "interior stairs" within the meaning of the Administrative Code since they did not serve as a required exit, that is, as a required means of egress from the interior of building to an open exterior space, pursuant to Administrative Code § 27-232.

Case: Katz v. Blank Rome Tenzer Greenblatt, NY Slip Op 07377 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion for leave to renew.

Fees for services while waiting for executed letter of intent.

Practice point: Appellate Division found that the motion court confused defendants' counterclaim for legal and consulting fees as consequential damages for plaintiffs' alleged fraud with plaintiffs' claim for similar fees pursuant to the parties' letter of intent, and erred in finding that defendants had not proved damages, inasmuch as they were not obligated to do so in opposition to plaintiffs' showing.

Student note: Appellate Division also found that even if plaintiffs' motion was predicated on defendants' failure to show loss causation, because they had engaged their attorneys and consultants prior to entering into negotiations with plaintiffs, plaintiffs failed to show that defendants did not incur fees for professional services during their negotiations and while waiting for plaintiffs to execute their copy of the letter of intent.

Case: Abyssinian Dev. Corp. v. Bistricer, NY Slip Op 07374 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Liability for a fall down a winding staircase.

Defective tree wells.

Practice point: In order to hold the City liable for injuries resulting from defects in tree wells in City-owned sidewalks, a plaintiff must demonstrate that the City has received prior written notice of the defect, pursuant to Administrative Code of the City of New York § 7-201[c][2].

Student note: Here, in opposition to the City's showing of entitlement to judgment as a matter of law, plaintiff submitted a Big Apple Map to prove that the City had notice of the allegedly defective condition. However, the map only provided notice that every tree well on the block lacked a fence or barrier, which was not sufficient to bring the particular condition to the City's attention.

Case: O’Donoghue v. City of New York, NY Slip Op 07371 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Fees for services while waiting for executed letter of intent.

Motions to withdraw as counsel.

Practice point: Where defendant's insurer in a personal injury action issues a contested disclaimer of coverage in the midst of litigation, it is inappropriate to grant a motion to withdraw by the attorney the insurer has provided.

Student note: The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court, and the court's decision should not be overturned on appeal absent a showing of an improvident exercise of discretion.

Case: McDonald v. Shore, NY Slip Op 07277 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Defective tree-wells.