Assumption of the risk.

Practice point: The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. The doctrine does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased.

Student note:  The doctrine encompasses risks associated with the construction of the playing surface and any open and obvious condition on it.

Case:  Herman v. Lifeplex, LLC, NY Slip Op 03815 (2d Dept. 2013).

Here is the decision. 

Tomorrow's issue: 90-day notices and dismissal.

A claim of an attorney's aiding and abetting fraud.

Practice point:  Plaintiff failed to state a cause of action for aiding and abetting fraud against defendant law firm and the individual defendant, plaintiff's former attorney. The alleged conduct, namely, defendants' failure to disclose a voting agreement entered into between non-parties at a time when defendants did not represent plaintiff and to subsequently highlight the voting agreement's existence, does not constitute substantial assistance in the commission of the alleged underlying fraud.

Student note:  Likewise, the claim that defendants provided routine legal services to the alleged fraudsters is insufficient to establish a claim for aiding and abetting fraud.

Case:  Learning Annex, L.P. v. Blank Rome, LLP, NY Slip Op 03921 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Assumption of the risk.

Contempt.

Practice point:  A finding of contempt requires that a lawful court order, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed. Moreover, the party to be held in contempt must have had knowledge of the court's order, and there must be a showing of prejudice to the right of a party to the litigation.

Student note: The burden of proof is on the motion's proponent, and the evidentiary standard is clear and convincing.

Case:  Bennet v. Liberty Lines Transit, Inc., NY Slip Op 03807 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A claim of an attorney's aiding and abetting fraud.

Tolling the statute of limitations in a legal malpractice action.

Practice point:  The limitations period is tolled by the continuous representation doctrine where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.  To invoke the doctrine, there must be clear indicators of an ongoing, continuous, developing, and dependent relationship between the client and the attorney. One predicate is evidence of continuing trust and confidence in the relationship. Here, the Supreme Court properly concluded that the necessary relationship ceased to exist when the plaintiff surreptitiously removed his file from the defendants' office.

Student note: The statute of limitations for legal malpractice is three years, pursuant to CPLR 214(6).

Case:  Aseel v. Jonathan E. Kroll & Assoc., PLLC, NY Slip Op 03806 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Contempt.

Claims against an individual defendant as an employer, not as a corporate officer.

Practice point: While there is no private right of action against corporate officers for violations of Labor Law's Article 6, plaintiffs brought suit against the individual defendant as an employer, not as a corporate officer, and so their claims were not precluded. Plaintiffs also were allowed to assert claims against him for violations of the New York Minimum Wage Act and its implementing regulations, including 12 NYCRR 142-2.2. Under the Act, the individual defendant may be liable for failure to properly compensate plaintiffs if he was their employer, or if plaintiffs show that the corporate veil should be pierced. Here, plaintiffs alleged in their complaint that, during their employment with the corporation, the individual defendant exercised control of the day-to-day operations and that he was their employer under New York law. They also submitted a plaintiff's affidavit stating that the individual defendant hired and fired employees, supervised and controlled employees' work schedules, determined the method and rate of pay, kept employment records, and approved vacations.

Student note: At this pre-answer juncture, and upon consideration of the economic realities of the case, plaintiffs have stated a cause of action against the individual defendant as an employer within the meaning of Labor Law §§ 190(3) and 651(6). Accordingly, plaintiffs were not required to show that the corporate veil should be pierced or allege that the individual defendant exercised complete domination and control over the corporation.

Case:  Bonito v. Avalon Partners, NY Slip Op 03775 (1st Dept. 2013).

Here is the decision.

Monday's issue: Tolling the statute of limitations in a legal malpractice action.

A motion to vacate a default judgment.

Practice point:  The Appellate Division determined that the Supreme Court improvidently exercised its discretion in granting the motion of the defendant South 4th Street Condos, LLC, to vacate, as against it, a default judgment. Pursuant to CPLR 317, a defendant is entitled to vacatur of a default judgment if it is established that the defendant did not receive personal notice of the summons in time to defend and has a potentially meritorious defense. Here, South 4th established that it did not receive personal notice of the summons in time to defend. However, while there was no evidence that it deliberately attempted to avoid notice, it failed to show a potentially meritorious defense to the plaintiffs' Labor Law § 240 cause of action.

Student note:  The decision to set aside a default in answering is left to the sound discretion of the Supreme Court, and its determination likely will not be disturbed if there is support in the record.

Case:  Dias v. North True Constr. Mgt., LLC, NY Slip Op 03631 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Claims against an individual defendant as an employer, not as a corporate officer.

Slips and falls.

Practice point:  A plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation. Here, the moving defendants established their prima facie entitlement to judgment as a matter of law by submitting, among other things, the plaintiff's and her husband's deposition testimony which demonstrated that the plaintiff could not identify the cause of her fall without resorting to speculation. Although the plaintiff claimed that a bar connected to the bottom step of the bus caused her to trip, she acknowledged that she did not see this bar before her fall, and that she did not know which foot made contact with the bar. She stated that she only assumed that she had tripped on the bar after she regained consciousness and went looking for the source of the fall.

Student note: The settled law is that "[w]here 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." Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435.

Case:  Deputron v. A & J Tours, NY Slip Op 03629 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A motion to vacate a default judgment.

Retaliation and harassment claims.

Practice point:  It is unlawful to retaliate against an employee for having opposed statutorily forbidden discriminatory practices. Here, the defendants demonstrated that the claimant could not make out a prima facie case of retaliation by showing that the employee's complaints to her supervisors did not relate to statutorily forbidden discriminatory practices, and that she, therefore, had not engaged in protected activity. The cause of action alleging harassment was dismissed inasmuch as New York does not recognize a common-law cause of action to recover damages for harassment.

Student note:  To make a prima facie showing of retaliation under Executive Law § 296, a claimant is required to show that (1) the claimant was engaged in protected activity, (2) the claimant's employer was aware that he or she participated in such activity, (3) the claimant suffered an adverse employment action based upon his or her activity, and (4) there was a causal connection between the protected activity and the adverse action. Once this initial showing is made, the burden then shifts to the defendant to present legitimate, independent, and nondiscriminatory reasons to support its actions. Assuming the defendant meets this burden, the claimant would then have the obligation to show that the reasons put forth were merely a pretext.

Case:  Adeniran v. State of New York, NY Slip Op 03441 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Slips and falls.

Memorial Day.

For my generation's midwestern families who bore the cost, one station of their cross likely was a kitchen table at which sit a mother and dad, not because they're hungry though they haven't eaten since early morning, but because it's familiar, where they'd always sat and talked, all of them, going all the way back to when the kids were kids. It's late into the night of the day they got word that a son was killed in service, and they're reading aloud his letters, all of which they'd kept, the frank hand-written "Free," citing now-recognizable place-names they'd never even imagined just six months ago, and almost always closing with the well-intentioned, if unavailing, counsel, "Don't worry."

A valid release.

Practice point:  A valid release constitutes a complete bar to an action on a claim which is the subject of the release. Where the language is clear and unambiguous, the release is binding on the parties unless it is shown that it was procured by fraud, duress, overreaching, illegality or mutual mistake.

Student note:  A release will not be treated lightly because it is a a jural act of high significance without which the settlement of disputes would be rendered all but impossible.

Case:  Allen v. Riese Org., Inc., NY Slip Op 03547 (1st Dept. 2013).

Here is the decision.

Tuesday's issue: Retaliation and harassment claims.

Real estate commissions and bonus contracts with unlicensed persons.

Practice point:  The court determined that the action was not barred by Real Property Law § 442-d, which provides that an unlicensed person may not bring an action to recover a commission for facilitating the sale of real estate. The contract between the parties did not provide for plaintiff, who is not a licensed real estate broker, to receive a commission based on the sale of the property. Rather, it provided that, upon the sale of the property at a specified minimum selling price, plaintiff would be paid a bonus for, among other things, past management services rendered by him. In addition, although plaintiff was motivated to see the property sell above the minimum price, he was not the procuring cause of the real estate transaction. Defendant retained and paid a real estate broker to sell the property.

Student note:  The court also determined that plaintiff's breach of contract claim was not barred by the statute of limitations. The alleged breach for nonpayment under the terms of the contract did not occur until the property was sold, less than six years before the action was commenced (see CPLR § 213).

Case:  Glynos v. Dorizas, NY Slip Op 03414 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A valid release.