Conveyance of a property by deed.

Practice point:  Real Property Law § 240(3) provides that "[e]very instrument creating [or] transferring . . . real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law." Where a deed admits more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances.

Student note:  Courts may, as a matter of interpretation, carry out the intention of a contract by transposing, rejecting, or supplying words to make the meaning of the contract more clear. However, such an approach is appropriate only in those limited instances where some absurdity has been identified or the contract would otherwise be unenforceable, either in whole or in part.

Case:  Al's Atl., Inc. v. Shatma, LLC, NY Slip 05604 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Punitive and compensatory damages.

The first-in-time rule.

Practice point:  New York courts generally follow the rule, which provides that the court which has first taken jurisdiction is the one in which the matter should be determined, and it is a violation of the rules of comity to interfere.

Student note:  When considering whether to dismiss a later-filed action, courts will determine whether there is a sufficient identity of parties. In fact, substantial, not complete, identity of parties is all that is required to invoke CPLR 3211(a)(4). Where, as here, a plaintiff seeks the same damages for the same alleged injuries relating to the same transaction from close corporate affiliates, a court may properly make a finding that parties have substantially similar identities sufficient to invoke the rule.

Case:  Syncora Guar. Inc. v. J.P. Morgan Sec., LLC, NY Slip Op 05602 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Conveyance of a property by deed.

Motion for summary judgment in lieu of a complaint.

Practice point:  On a CPLR 3213 motion, a plaintiff may supplement its papers in response to a defendant's arguments in order to establish its entitlement to summary judgment in lieu of a complaint. Nothing that can be cured merely by adding papers should result in a denial of the motion, unless it is a denial with leave to renew on proper papers, pursuant to Siegel. Mere omissions from the affidavits that can be rectified by filing and serving additional affidavits should be cured by a continuance or adjournment in order for the additional affidavits to be served and filed.

Student note: If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise.

Case:  Sea Trade Mar. Corp. v. Coutsodontis, NY Slip Op 05599 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: The first-in-time rule.

An accountant's negligent misrepresentations.

Practice point:  Accountants may be held liable for negligent misrepresentations made to third parties with whom they have no contractual relationship, but who have relied to their detriment on inaccurate financial statements prepared by the accountant. In order to establish such liability, the relationship between the accountant and the party must be found to approach privity, through a showing that the following prerequisites are satisfied: (1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes, (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants' understanding of that party or parties' reliance.

Student note:   Here, the Appellate Division found that allegations supporting the cause of action to recover damages for negligent misrepresentation did  not satisfy the third prong. Viewing the complaint in the light most favorable to the plaintiff, as amplified by the evidence submitted by the plaintiff in opposition to the defendant's motion, the complaint failed to allege some conduct by the defendant linking it to the plaintiff which evinced the defendant's understanding of the plaintiff's reliance. Accordingly, the Supreme Court should have granted that branch of the defendant's motion to dismiss.

Case:  Signature Bank v. Holtz Rubenstein Reminick, LLP, NY Slip Op 05564(2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Motion for summary judgment in lieu of a complaint.

Leave to enter a default judgment.

Practice point:  On a motion for leave to enter a default judgment pursuant to CPLR 3215, a plaintiff is required to file proof of: (1) service of a copy or copies of the summons and the complaint, (2) the facts constituting the claim, and (3) the defendant's default. To demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine that a viable cause of action exists. CPLR 3215(f) expressly provides that a plaintiff may satisfy this requirement by submitting the verified complaint. To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense.

Student note: If, as was the case here, the defendant is a domestic corporation and was originally served with the summons and complaint by personal delivery to the Secretary of State, pursuant to Business Corporation Law § 306[b]), a plaintiff is also required to serve the defendant a second time, by first-class mail at its last known address, pursuant to CPLR 3215[g][4][i].

Case:  Fried v. Jacob Holding, Inc., NY Slip Op 05555 (2d Dept. 2013).

Here is the decision.

Monday 's issue: An accountant's negligent misrepresentations.

Summary judgment in a slip and fall case.

Practice point:  A defendant who moves for summary judgment in a slip-and-fall or trip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it.  In order to meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall.

Student note:  A movant cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case. If the defendant fails to meet its prima facie burden, the court need not consider the sufficiency of the plaintiff's opposition papers.

Case:  Campbell v. New York City Tr. Auth., NY Slip Op 05553 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Leave to enter a default judgment.

Dismissal for failure to prosecute.

Practice point:  The defendant's motion to dismiss the complaint based on the inordinate and prejudicial delay in prosecuting the action should was denied. The court could not dismiss this pre-note of issue action on the ground of a general lack of prosecution since the plaintiff had not received a 90-day demand pursuant to CPLR 3216(b) requiring the plaintiff to serve and file a note of issue.

Student note: CPLR 3216 permits a court to dismiss an action for failure to prosecute only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action.

Case:  Armouth-Levy v. New York City, NY Slip Op 05551 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Summary judgment in a slip and fall case.

Post-deposition errata sheets.

Practice point:  In his post-deposition errata sheet, the injured plaintiff radically changed much of his earlier testimony, with the vague explanation that he had been "nervous" during his deposition. Since the injured plaintiff failed to offer an adequate reason for materially altering the substance of his deposition testimony, the altered testimony could not properly be considered in determining the existence of a triable issue of fact as to whether a defect in, or the inadequacy of, the ladder caused his fall.

Student note:  CPLR 3116(a) provides that a "deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of reasons given by the witness for making them."

Case:  Ashford v. Tannenhauser, NY Slip Op 05508 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Dismissal for failure to prosecute.
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Laches and dismissal.

Practice point:  The doctrine of laches does not provide an alternate basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216(b), and where the case management devices of CPLR 3404 and 22 NYCRR 202.27 are inapplicable.

Student note:  Marking a case off a motion or conference calendar does not dispose of it.

Case:  Arroyo v. Board of Educ. of City of New York, NY Slip Op 05507 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Post-deposition errata sheets.

Searching the record on a summary judgment motion.

Practice point:  A court deciding a motion for summary judgment is empowered to search the record and may, even in the absence of a cross motion, grant summary judgment to a nonmoving party. Such power, however, is not boundless, and the court's search of the record is limited to those causes of action or issues that are the subject of the motion.

Student note:  Moreover, discovery in this matter was not complete at the time the court searched the record. Thus, it was premature for the court to grant summary judgment.

Case:  New Hampshire Ins. Co. v. MF Global, Inc., NY Slip Op 05291 (1st Dept. 2013).

Here is the decision.

Monday's issue: Laches and dismissal.

Aiding and abetting a breach of fiduciary duty, and appeals from denial of a dismissal motion.

Practice point:  Liability for aiding and abetting a breach of fiduciary duty requires establishing the following elements: (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; and (3) the defendant must knowingly and substantially assist the principal violation.

Student note:  While an appeal taken from a denial of a dismissal motion may be moot when that complaint has been superseded by an amended complaint, that is not the case where the new pleading does not substantively alter the existing causes of action.

Case:  Aetna Life Ins. Co. v. Appalachian Asset Mgt. Corp., NY Slip Op 05506 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Searching the record on a summary judgment motion.