A slip on sand on a basketball court.

Practice point:  The Appellate Division found that dismissal of the complaint was proper in this action where plaintiff alleges that he was injured when, while playing basketball, he slipped on sand on the court. Plaintiff assumed the risks inherent in playing on the outdoor court, and the sand he allegedly slipped on was a result of a naturally occurring condition of the outdoor setting.

Student note: The Court noted that plaintiff had played on the subject court on numerous occasions and was familiar with its problem of accumulating sand, which was dealt with by sweeping the court when necessary.

Case:   Austion v Parkchester S. Condominium, Inc., NY Slip Op 04424 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Premises' owner pleads exclusivity of Workers Comp.

An invalid 90-day demand, and issues raised for the first time on appeal.

Practice point:  The certification order did not constitute a valid 90-day demand pursuant to CPLR 3216 because it directed the plaintiff to file a note of issue within 70 days, rather than 90 days, of the date of the order. Since the order failed to conform with a statutorily mandated condition precedent to dismissal of the action, the Supreme Court was not authorized to dismiss the action pursuant to CPLR 3216.

Student note: Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record, and could not have been avoided if brought to the attention of the Supreme Court. Accordingly, the Appellate Division reached the issue and determined that the plaintiff's motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216, restore the action to the trial calendar, and extend the time to file a note of issue should have been granted.

Case: Guy v. Hatsis, NY Slip Op 03970 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A slip on sand on a basketball court.

90-day demands and notes of issue.

Practice point:  Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial. While the filing of a note of issue within 90 days after service upon the plaintiff of a written demand precludes a court from dismissing the action, pursuant to CPLR 3216[c], here, the plaintiffs' certificate of readiness stated that discovery proceedings now known to be necessary were not completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity, and the motion to vacate the note of issue was granted.

Student note: Having received a 90-day demand pursuant to CPLR 3216, the plaintiffs were required to file a proper note of issue or move, before the default date, to vacate the 90-day demand or to extend the 90-day period pursuant to CPLR 2004. The plaintiffs failed to timely file a proper note of issue or make a motion in response to the 90-day demand. Thus, to avoid dismissal of the complaint, the plaintiffs were required to show a justifiable excuse for the delay and a potentially meritorious cause of action.

Case:  Furrukh v. Forest Hills Hosp., NY Slip Op 03968 (2d Dept. 2013).

Here is the decision.

Monday's issue: An invalid 90-day demand.

An untimely summary judgment motion.

Practice point:  The Appellate Division affirmed the order denying summary judgment on the alternate ground that the motion, made more than fifteen months after the filing of the note of issue, was untimely, pursuant to CPLR 3212[a].  Defendant's purported excuse for the late motion - that a CD of an MRI, which had been lost, was found shortly before defendant made the motion - is inadequate. The parties agreed on the MRI's findings of a hip fracture, which were documented in other medical records, including an operative report. While the MRI was relied on by the parties' experts, it was not necessary for defendant's motion and the case could have proceeded to trial without that evidence.

Student note: The Appellate Division opined that, on the merits, the motion should have been denied. Defendant's moving papers failed to respond to a number of specific allegations of negligence asserted in the bill of particulars, including the central claim concerning the failure of its nurse to reposition the guardrails on the decedent's bed so as to prevent a fall.

Case: Gorman v. Montefiore Med. Ctr., NY Slip Op 04093 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: 90-day demands and notes of issue.

Breach of fiduciary duty and the business judgment rule.

Practice point: A cause of action sounding in breach of fiduciary duty must be pleaded with the particularity required by CPLR 3016(b), and the elements are (1) the existence of a fiduciary relationship; 2) misconduct by the defendant; and (3) damages directly caused by the defendant's misconduct.

Student note: While board members owe a fiduciary responsibility to treat all shareholders fairly and evenly, the business judgment rule bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.

Case:  Deblinger v. Sani-Pine Prods. Co, Inc., NY Slip Op. 03963 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: An untimely summary judgment motion.

Lack of service as the basis for a motion to vacate a judgment.

Practice point:  The Supreme Court properly denied, without a hearing, that branch of defendant's motion, pursuant to CPLR 5015(a)(4), to vacate the judgment of foreclosure and sale. The process server's affidavits of service constituted prima facie evidence that the appellant was validly served pursuant to CPLR 308(2)  Since the appellant never denied the specific facts contained in the process server's affidavit, no hearing was required.

Student note: Insofar as defendant moved pursuant to CPLR 5015(a)(1) to vacate her default, she failed to establish a reasonable excuse since the only excuse proffered was that was not served with process.
Similarly, defendant was not entitled to relief under CPLR 317 since she failed to demonstrate that she did not receive actual notice of the summons and complaint in time to defend.  The mere denial of receipt of the summons and complaint does not .establish lack of actual notice for the purpose of CPLR 317.

Case:  Bank of N.Y. v. Samuels, NY Slip Op 03858 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Breach of fiduciary duty and the business judgment rule.

Summary judgmet on liability in an auto case.

Practice point:  To prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent but that the plaintiff was free from comparative fault. Where the movant has established his or her entitlement to judgment as a matter of law, the opposing party may defeat the motion for summary judgment by submitting sufficient evidence to raise a triable issue of fact as to the moving party's comparative fault.

Student note: A driver is bound to see what is there to be seen through the proper use of his or her senses and is negligent for failure to do so. A driver also has a duty to exercise reasonable care under the circumstances to avoid an accident.

Case:  Lu Yuan Yang v. Howsal Cab Corp., NY Slip Op 03819 (2d Dept. 2013).

 Here is the decision.

Tomorrow's issue: Lack of service as the basis for a motion to vacate a judgment.

90-day notices and dismissal.

Practice point: A certification order of the Supreme Court directing the plaintiff to file a note of issue within 90 days, and warning that the complaint would be deemed dismissed without further order if the plaintiff failed to comply, was effectively a 90-day notice pursuant to CPLR 3216. Having received notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time to serve and file. The plaintiff did neither. Thus, to avoid dismissal, the plaintiff was required to demonstrate a justifiable excuse for failure to comply with the certification order and a potentially meritorious cause of action, pursuant to CPLR 3216[e]. The assertion of the plaintiff's counsel that he incorrectly calendared the date on which the note of issue was due amounted to a reasonable excuse of law office failure, but the plaintiff failed to provide in her initial moving papers an affidavit of merit from a medical expert competent to attest to the meritorious nature of the cause of action alleging medical malpractice.

Student note: It was improper for the plaintiff to submit an affidavit of merit from a medical expert for the first time in her reply papers.

Case: King v. Dobriner, NY Slip Op 03817 (2d Dept. 2013). 

Here is the decision.

Monday's issue: Summary judgment on liability in an auto case.
 

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.