Default for missing a compliance conference.

Good luck to those sitting for the New York practice day of the bar exam.

Practice point:  The Supreme Court, sua sponte, dismissed this action pursuant to 22 NYCRR § 202.27(b) on the ground that the plaintiff failed to appear for a count-ordered compliance conference. However, the plaintiff demonstrated that he did not receive notice of the date of that compliance conference. As the plaintiff did not have notice of the compliance conference, the plaintiff's default was a nullity.

Student note:  Consequently, vacatur of the default was required as a matter of law and due process, and no showing of a potentially meritorious cause of action was required.

Case:  Rosas v. Stieg, NY Slip Op 05441 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Coops, the business judgment rule, and recovering attorneys' fees.

Stipulations of settlement.

Practice point:  To be enforceable, stipulations of settlement must conform to the criteria set forth in CPLR 2104.  Where a settlement is not made in open court, CPLR 2104 provides, in pertinent part, as follows: "An agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney." The plain language of the statute directs that the agreement itself must be in writing, signed by the party or the party's attorney to be bound.  In addition, since settlement agreements are subject to the principles of contract law, for an enforceable agreement to exist, all material terms must be set forth and there must be a manifestation of mutual assent.

Student note:  Stipulations of settlement are judicially favored and will not lightly be set aside. They will be enforced with rigor and without a searching examination into their substance as long as they are clear, final and the product of mutual accord.

Case:  Forcelli v. Gelco Corp., NY Slip Op 05437 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Default for missing a compliance conference.

A fall on the stairs.

Practice point:  Summary judgment was denied in this action where plaintiff alleges that he slipped and fell on a wet substance that was on the stairway of defendant's apartment building. Defendant moved for summary judgment on the ground that it did not create or have actual or constructive notice of the hazard. In support of the motion, defendant submitted the deposition testimony of its superintendent about the building's regular janitorial schedule. However, it offered no evidence that the schedule was followed on the day of the accident.  Moreover, constructive notice remains an issue in this case because defendant made no showing as to when the stairway was last inspected before plaintiff's accident.

Student note:  Standing alone, proof that stairs were routinely cleaned on a daily basis is not germane to the dispositive issue of lack of notice of an alleged defective condition.

Case:  Gautier v. 941 Intervale Realty LLC, NY Slip Op 05432 (1st Dept. 2013).

Here is the decision.

Monday's issue: Stipulations of settlement.

Modifying a custody arrangement.

Practice point:  In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child. The best interests of the child are determined by a review of the totality of the circumstances. The court will consider whether the alleged changed circumstances indicate that one of the parties is unfit, the nature and quality of the relationships between the child and the parties, and the existence of a prior agreement.

Student note:  The recommendation of the court-appointed expert and the position of the attorney for the child are factors to be considered and are entitled to some weight, but such recommendations and position are not determinative and do not usurp the judgment of the trial judge.

Case:  Conway v. Gartmond, NY Slip Op 05313 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A fall on the stairs.

Rescinding a contract under the Securities & Exchange Act.

Practice point:  An implied private right of action exists pursuant to section 29(b) of the Act to rescind a contract made in violation of section 15(a) of the Act (see 15 USC § 78cc[b].

Student note:  The one-year statute of limitations and three-year statute of repose of section 29(b) of the Act apply to implied causes of action to rescind a contract for violation of section 15(a), whether asserted in a complaint or as a counterclaim or defense. The three-year period specified in section 29(b) is a statute of repose, which envelops both the right and the remedy. The repose period serves as an absolute barrier, and, accordingly, CPLR 203(d) cannot serve to extend a claim for rescission of a contract pursuant to section 29(b) of the Act.

Case:  Obstfeld v. Thermo Niton Analyzers, LLC, NY Slip Op 05304 (2d Dept. 2013). 

Here is the decision. 

Tomorrow's issue: Modifying a custody arrangement.

The firefighter rule, and a police officer's tort claims.

Practice point:  The firefighter rule provides that police and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment. The rule bars a police officer's or a firefighter's recovery when the performance of his or her duties increased the risk of the injury's happening, and did not merely furnish the occasion for the injury.

Student note:  General Municipal Law § 205-e permits a police officer to assert a tort claim against a fellow officer or an employer. To establish a cause of action under the statute, a plaintiff must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the police officer was injured, and set forth facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm.

Case: Gammons v. City of New York,  NY Slip Op 05298 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Rescinding a contract under the Securities & Exchange Act.

Falling objects at the worksite.

Practice point:  Labor Law § 240(1) requires property owners and contractors to provide workers with "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection" to the workers. The statute protects against such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured.  As to falling objects, Labor Law § 240(1) applies where the object's  falling  is related to a significant risk inherent in the relative elevation at which materials or loads must be positioned or secured.

Student note:  To recover damages for a statutory violation, a plaintiff must show more than simply that an object fell causing injury to a worker. The plaintiff must show that, at the time the object fell, it was being hoisted or secured, or required securing for the purposes of the undertaking. The plaintiff also must show that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute.

Case:  Flossos v. Waterside Redevelopment Co., L.P., NY Slip Op 05297 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: The firefighter rule, and a police officer's tort claim.

Fraudulent intent, and attorneys' fees under Debtor and Creditor Law.

Practice point:  Pursuant to Debtor and Creditor Law § 276, a conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors. As direct evidence of fraudulent intent is often elusive, courts will consider badges of fraud, which are circumstances that accompany fraudulent transfers so commonly that their presence gives rise to an inference of intent.

Student note:  A plaintiff that successfully establishes actual intent to defraud is entitled to a reasonable attorney's fee under Debtor and Creditor Law § 276-a.

Case:  5706 Fifth Ave., LLC v. Louzieh, NY Slip Op 05187 (2d Dept. 2013).

Here is the decision.

Monday's issue: Falling objects at the worksite.

Assuming the risk of a fall from a horse.

Practice point:  The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff assumed the risk of falling off a horse while riding. Under the doctrine of primary assumption of the risk, by engaging in a sport or recreational activity, a participant 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 risk of falling from a horse or a horse's acting in an unintended manner is inherent in the sport of horseback riding. Awareness of a risk will be assessed against the background of the skill and experience of the particular plaintiff.  Here, the record, including the plaintiff's own deposition testimony, showed that the plaintiff had sufficient skill and experience to appreciate the risk of falling off a horse while riding.

Student note:  The plaintiff's alleged diminished mental capacity did not raise a triable issue of fact as to whether she was able to appreciate the risks inherent in horseback riding, in light of the evidence showing that she was an experienced horseback rider and was aware of the risk of falling off a horse. The plaintiff's claim that the defendants unreasonably increased the risks involved in horseback riding was also insufficient to raise a triable issue of fact. The affidavit of the plaintiff's expert was speculative, as the expert assumed facts not supported by the evidence in reaching a conclusion.

Case:  Fenty v. Seven Meadows Farms, Inc., NY Slip Op 05186 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Fraudulent intent, and attorneys' fees under Debtor and Creditor Law.

Contractual indemnification.

Practice point:  The right to contractual indemnification depends upon the specific language of the contract. A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances.

Student note:  A contract will be interpreted in accordance with the intent of the parties as expressed in the language of the agreement.

Case:  Del Vecchio v. Danielle Assoc., LLC, NY Slip Op 05185 (2d Dept. 2013).

Here is the decision. 

Tomorrow's issue:  Assuming the risk of a fall from a horse.

Moving for summary judgment in a legal malpractice action.

Practice point:  In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence.

Student note: To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements.

Case:  Barnave v. Davis, NY Slip Op 05184 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Contractual indemnification.