Restitution of funds.

Practice point:  A party may seek restitution of funds paid pursuant to an order set aside on appeal. The determination whether to award restitution is within the discretion of the trial court.

Student note: CPLR 5015(d) empowers a court that has set aside a judgment or order to restore the parties to the position they were in prior to its rendition, consistent with the court's general equitable powers.

Case: Gaisi v. Gaisi, NY Slip Op 05438 (2d Dept. 2013).
  
Here is the decision.

Tomorrow's issue: Disorderly conduct as between spouses.

Denying a trustee's commission.

Practice point:  Courts have the discretion to take into consideration all of a trustee's misconduct in determining the grant of annual commission, even conduct that occurred after the period applicable to the commission. The Surrogate has broad discretion to deny commission to a trustee if the trustee has engaged in misconduct. In determining if a commission should be denied, misconduct that is not directly related to the commission being sought may be taken into consideration,

Student note:  Trustees can be denied commission where their acts involve bad faith, a complete indifference to their fiduciary obligations, or some other act that constitutes malfeasance or significant misfeasance. The denial of a commission, however, should not be in the nature of an additional penalty. Rather, it should be based on the trustee's failure to properly serve the trust.

Case:  Matter of Gregory Stewart Trust, NY Slip Op 05290 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Restitution of funds.

Notices to admit.

Practice point:  The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. Here, the plaintiff's notice to admit improperly sought the defendant's admission concerning a matter that went to the heart of the controversy.

Student note:  Moreover, the purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial.

Case:  Ramcharran v. New York Airport Servs., LLC, NY Slip Op 05195 (2d Dept. 2013).

Here is the decision.

Monday's issue: Denying a trustee's commission.

Judicial review of administrative determinations.

Practice point:  Judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the determination is supported by substantial evidence. Substantial evidence means more than a mere scintilla of evidence, and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides.

Student note: When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the administrative agency. The courts may not weigh the evidence or reject the choice made by the agency where the evidence is conflicting and there is room for choice.

Case:  Matter of Solano v. City of Mount Vernon, NY Slip Op 05322 (2d Dept. 2013).

Tomorrow's issue: Notices to admit.

Coops, the business judgment rule, and recovering attorneys' fees.

Practice point:  In the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board's determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith. The business judgment rule does not apply when a cooperative board acts outside the scope of its authority or violates its own governing documents.

Student note:   Property Law § 234 provides for the reciprocal right of a lessee to recover an attorney's fee when the same benefit is bestowed upon the lessor in the parties' lease.

Case:  Cohan v. Board of Directors of 700 Shore Rd. Waters Edge, Inc., NY Slip Op 05447 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Judicial review of administrative determinations.

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.