Failure to appear at a hearing.

Practice point: To vacate an order entered upon failure to appear at a hearing to determine the validity of service, the movant must demonstrate both a reasonable excuse for the default and a potentially meritorious position at the hearing. The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court.

Student note: Although a court has the discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005, a conclusory, undetailed, and uncorroborated claim of law office failure does not amount to a reasonable excuse.

Case: Eastern Sav. Bank, FSB v. Charles, NY Slip Op 00892 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Replevin, and orders of seizure.

School's duty to supervise.

Practice point: A school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent.  A school, however, is not an insurer of its students' safety, and will be held liable only for foreseeable injuries proximately related to the absence of adequate supervision.

Student note: Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the school is warranted.

Case: Diaz v. City of Yonkers, NY Slip Op 00891 (2d Dept. 2013).

Here is the decision.

Monday’s issue: Failure to appear at a hearing.

Deposing a participant in the witness program.

Practice point: A participant in the witness protection program cannot use that participation as a shield from the adverse effects of the litigation the participant has initiated, especially where the subsequent action is not related to the criminal action which triggered the need for the participation in the first place.

Student note: CPLR 3101(a) requires full disclosure of all matter material and necessary in the prosecution or defense of an action. Material and necessary information is that which is required to be disclosed because it bears upon the controversy at issue and will assist the requesting party in preparing for trial. Courts will interpret discovery requests liberally in favor of disclosure.

Case: M.C. v. Sylvia Marsh Equities, Inc., NY Slip Op 00888 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: School’s duty to supervise.

Hit by intoxicated bar patron.

Practice point: Summary judgment was denied where plaintiff alleged that he was injured when he was struck in the face by a visibly intoxicated patron of the tavern on the sidewalk outside the premises. The record presented triable issues as to whether there was a reasonable or practical connection between the sale of alcohol to a visibly intoxicated patron and the resulting injuries.

Student note: Although the tavern's bartender stated that the patron did not appear to be visibly intoxicated, plaintiff testified to the contrary, and two other witnesses submitted affidavits stating that prior to the assault the patron had been served alcohol by the tavern while visibly intoxicated, inasmuch as he was unsteady, aggressive and boisterous. The record also raised issues as to whether appropriate security measures were taken after the bartender allegedly defused an initial confrontation between the patron and plaintiff's group while inside the bar.

Case: Carver v. P.J. Carney’s, NY Slip Op 00805 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Deposing a participant in the witness protection program.

Mutual mistake and contract law.

Practice point: Mutual mistake may furnish the basis for the reformation of a written agreement where the signed writing does not express the actual agreement of the parties. Parol evidence is admissible to establish the actual agreement. However, there is a heavy presumption that the executed agreement reflects the true intention of the parties, and a correspondingly high order of evidence is required to overcome the presumption.

Student note: Thus, where a written agreement between sophisticated, counseled businesspersons  is unambiguous on its face, one party cannot defeat summary judgment by a conclusory assertion that, owing to mutual mistake or fraud, the writing did not express his or her own understanding of the oral agreement reached during negotiations.

Case: West Vernon Petroleum Corp. v. Singer Holding Corp., NY Slip Op 0073d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Hit by intoxicated bar patron.

Court holiday.

The Courts are closed to mark the holiday.

Tomorrow's issue: Mutual mistake and contract law.

Applications for leave to discontinue.

Practice point: An application for leave to discontinue an action without prejudice is addressed to the legal, not the arbitrary, discretion of the court, and thus should be granted unless there are reasons which would justify its denial.

Student note: The general rule is that plaintiff should be permitted to discontinue the action unless defendant would be prejudiced thereby.

Case: Wells Fargo Bank, N.A. v. Fisch, NY Slip Op 00732 (2d Dept. 2013).

Here is the decision.

Tuesday’s issue: Mutual mistake and contract law.

Workers' Compensation Law.

Practice point: The protection that is afforded to employers by §§ 11 and 29(6) extends to the employing entity's alter egos. A defendant moving for summary judgment based on the exclusivity defense of the Workers' Compensation Law under this theory must show, prima facie, that it was the alter ego of the plaintiff's employer.

Student note: A defendant may establish itself as the alter ego by demonstrating that one of the entities controls the other, or that the two operate as a single integrated entity.

Case: Qyizhpe v. Luvin Constr. Corp., N.Y. Slip Op 00728 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Applications for leave to discontinue.

Attorney deceit.

Practice point: Plaintiff alleged that, in plaintiff's divorce action, defendant submitted to the court a document with a page intentionally switched to conceal the unreliability of certain projections relating to a start-up company, founded by plaintiff, in which he and his former wife held a minority interest. This single alleged act of deceit was not sufficiently egregious to support a claim under Judiciary Law § 487(1).

Student note: In addition, plaintiff failed to allege damages resulting from the switching of the page. He claims that he had to settle with his former wife to avoid expensive and potentially protracted litigation as to the value of the allegedly worthless stock. However, the complaint alleges that the dispute over the value of the stock arose when defendants retained a second appraiser, who was given a correct copy of the document and attributed substantial value to the stock. Therefore, plaintiff did not allege that the settlement he entered into with his former wife was the proximate result of defendant's alleged deceit.

Case: Strumwasser v. Zeiderman, NY Slip Op 00556 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Workers' Compensation Law.

Discovery, and Facebook

Practice point: Plaintiff's mere possession and use of a Facebook account is not enough to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the use of the account..

Student note: To warrant discovery, defendants must establish a factual predicate by identifying relevant information in the account, such as something that contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses.

Defendants' argument that plaintiff's Facebook postings may reveal daily activities that contradict or conflict with the disability claim is nothing more than a request for permission to conduct a fishing expedition.

Case: Tapp v. New York State Urban Dev. Corp., NY Slip Op 00547 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Attorney deceit.

Agency and Labor Law.

Practice point: Under the Labor Law, a party is deemed to be an agent of an owner or general contractor when it has supervisory control and authority over the work being done where a plaintiff is injured. To impose liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition. Thus, a defendant's potential liability is based on whether it had the right to exercise control over the work, not whether it actually exercised that right.

Student note: Once an entity becomes an agent under the Labor Law it cannot escape liability to an injured plaintiff by delegating the work to another entity.

Case: Samaroo v Patmos Fifth Real Estate, Inc., NY Slip Op 00472 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Discovery, and Facebook.