Practice point:
To succeed on a
motion for judgment as a matter of law, pursuant to CPLR 4401, a defendant has
the burden of showing that there is no rational process by which the jury could
find in favor of the plaintiff and against the moving defendant.
Student note: In determining
whether the defendant has met this burden, a court must accept the plaintiff's
evidence as true and accord the plaintiff the benefit of every reasonable
inference which can reasonably be drawn from the evidence presented at trial.
Case: Figueroa v. City of New
York, NY Slip Op 08279 (2d Dept. 2012).
Here is the decision.
Tomorrow’s issue: Expert
testimony.
December 17, 2012
December 14, 2012
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. 20Sherman Assoc., LLC , NY Slip Op 08408 (1st Dept. 2012 ).
Here is the decision.
Monday’s issue: Motion for judgment as a matter of law.
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
Here is the decision.
Monday’s issue: Motion for judgment as a matter of law.
December 13, 2012
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 (1stDept. 2012 ).
Here is the decision.
Tomorrow’s issue: Arbitration clauses.
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
Here is the decision.
Tomorrow’s issue: Arbitration clauses.
December 11, 2012
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.
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.
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.
December 10, 2012
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 (2dDept. 2012 ).
Here is the decision.
Tomorrow’s issue: Easements by prescription.
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
Here is the decision.
Tomorrow’s issue: Easements by prescription.
December 7, 2012
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 (1stDept.
2012 ).
Here is the decision.
Monday’s issue: Stipulations.
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
Here is the decision.
Monday’s issue: Stipulations.
December 6, 2012
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 (1stDept.
2012 ).
Here is the decision.
Tomorrow’s issue: Admissibility of third-party business records.
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
Here is the decision.
Tomorrow’s issue: Admissibility of third-party business records.
December 5, 2012
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. BlankRome Tenzer
Greenblatt , NY Slip Op 07377
(1st Dept. 2012 ).
Here is the decision.
Tomorrow’s issue: Motion for leave to renew.
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
Here is the decision.
Tomorrow’s issue: Motion for leave to renew.
December 4, 2012
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.
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.
Here is the decision.
Tomorrow’s issue: Liability for a fall down a winding staircase.
December 3, 2012
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.
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.
Here is the decision.
Tomorrow’s issue: Fees for services while waiting for executed letter of intent.
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