Spoilation.

Practice point: Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading.

Student note: Recognizing that striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct, courts will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness. Precluding a party from presenting evidence at trial is also a drastic sanction which generally requires a showing that a party's lack of cooperation with discovery was willful, deliberate, or contumacious. Less severe sanctions for spoliation of evidence are appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her defense or case.

Case: Jennings v. Orange Regional Med. Ctr., NY Slip Op 00064 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Notices of claim.

Slips and falls.

Practice point: A plaintiff's inability to identify the cause of the fall is fatal to the action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Student note: Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a slip and fall accident, any determination by the trier of fact as to causation would be based upon sheer conjecture.

Case: Dennis v. Lakhani, NY Slip Op 00061 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Spoilation.

Court holiday.

The courts are closed today.

Tomorrow's issue: Slips and falls.

An account stated.

Practice point: An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due.  An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time or makes partial payment on the account.

Student note: Here, the affidavit of the plaintiff's project manager stated that, when the defendant was contacted about payment, she stated that she never authorized the plaintiff to do work in her home and did not intend to pay the plaintiff. In addition, the plaintiff's project manager averred that "not even a single payment was ever received," even though the defendant had been billed for the plaintiff's services. These submissions were insufficient to establish, as a matter of law, that the defendant retained the subject invoices for an unreasonable period of time without objecting to them, or that she made partial payment on the invoices.

Case: Branch Servs., Inc. v. Cooper, NY Slip Op 00058 (2d Dept. 2013).

Here is the decision.

Tuesday’s issue: Slips and falls.

Appellate practice.

Practice point: It is the obligation of the appellant to assemble a proper record on appeal. An appellant's record must contain all of the relevant papers that were before the Supreme Court, pursuant to CPLR 5526.

Student note: Here, the record on appeal was inadequate. The appellants failed to include the order to show cause by which they moved to vacate the subject foreign judgment and any of the other related papers, including affirmations in support of and in opposition to the motion. These omissions rendered meaningful appellate review of the Supreme Court's determination virtually impossible.

Case: Barretti v. Solucorp Indus., Ltd.., NY Slip Op 00054 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: An account stated.

Pushed around at a rock concert.

Practice point: Defendants met their initial burden of showing that they provided adequate security measures at Ozzfest 2006, an outdoor concert held on Randall's Island. They submitted evidence showing that meetings were held with the NYPD to assess the security plans proposed, and that they ultimately provided 215 personnel to secure the concert, the attendance of which was about 10,000 to 12,000, and that such security would have been sufficient for a crowd of 30,000. Plaintiffs offered no evidence, expert or otherwise, to show that such security was inadequate,

Student note: Contrary to plaintiff's contention, the court found no evidence in the record to show that the unidentified person who shoved plaintiff was actually engaged in dangerous moshing or slam dancing, and plaintiff himself testified that he was unsure whether his injury was due to an intentional push or someone simply bumping into him. In any event, that unidentified nonparty caused plaintiff's fall, and under the circumstances here, defendants will not be liable for such unforeseen conduct.

Case: Marrero v. City of New York, 00015 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Appellate practice.

A claim on a note and loan agreement.

Practice point: Defendants' argument that performance under the note and loan agreement was frustrated by plaintiff's failure to make timely reimbursement of certain marketing expenses it submitted in accordance with the loan agreement's reimbursement provisions raises a defense that lies outside the making of the note and the obligations thereunder. While defenses might raise issues outside the note, that does not change its character as one for the payment of money only. Such a defense, which rests upon an apparent claim of breach of a loan agreement provision regulating the availability of certain loan proceeds for marketing purposes, is separate from defendants’ unequivocal and unconditional obligation to repay the monies it was loaned.

Student note: To the extent that the breach of contract defense may amount to a viable claim, it may be asserted in a separate action.

Case: German Am. Capital Corp. v. Oxley Dev. Co., LLC, NY Slip Op 00014 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Pushed around at a rock concert.

In pari delicto.

Practice point: The doctrine mandates that the courts will not intercede to resolve a dispute between two wrongdoers.

Student note: The justice of the rule is most obvious where a willful wrongdoer is suing someone who is alleged to be merely negligent, but it also applies where both parties acted willfully.

Case: Concord Capital Mgt., LLC v. Bank of America, N.A., NY Slip Op 00011 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: A claim on a note and loan agreement.

Defective sidewalks.

Practice point: Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner. The language of section 7-210 mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code sections 19-152 and 16-123.

Student note: Although section 7-210 of the Administrative Code does not define the term "sidewalk," section 19-101(d) of the Administrative Code describes a sidewalk as "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians."

Case: Stoloyvitskaya v. Dennis Boardwalk, LLC, NY Slip Op 09047 (2d Dept. 2012).

Here is the decision.

Monday’s issue: In pari delicto.

Proper service.

Practice point: The plaintiff presented prima facie proof that service was effected on a partner in the defendant-law firm, by personally delivering a copy of the summons with notice to a paralegal at the firm’s office, which was the partner's actual place of business, and then mailing a copy of it to the partner at the office in an envelope marked “personal and confidential” and not indicating that the communication was from an attorney or concerned a legal action. This service was sufficient to confer personal jurisdiction over the firm, which is a limited liability partnership, since service was properly effected upon one of its partners, pursuant to CPLR 308[2]; 310-a.

Student note: Although the firm alleges that only one copy of the summons with notice was left with the paralegal, this was not a jurisdictional defect, since such notice was reasonably calculated, under all the circumstances, to apprise the partner,  and hence the firm, of the pendency of the action and afford the firm an opportunity to present its objections and defenses.

Case: Green v. Gross & Levin, LLP, NY Slip 09027 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Defective sidewalks.

The storm-in-progress rule.

Practice point:  Under the rule, neither a landlord nor a snow removal contractor will be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter. Here, the defendant established its prima facie entitlement to judgment as a matter of law by producing evidence that the accident occurred while a snow storm either was in progress or had just stopped.

Student note: Contrary to the plaintiff's contention, the speculation of the defendant's former employee, who had been employed as a porter for the defendant, that when round salt mixes with frozen rain "it's a little bit slippery," did not raise a triable issue of fact as to whether the defendant's snow removal efforts created or exacerbated a dangerous condition.

Case: Smiloqitz v. GCA Serv.Grp., Inc., NY Slip Op 09044 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Proper service.