A motion to compel arbitration.

Practice point:  Although doubts as to the arbitrability of a claim are to be resolved in favor of arbitrability, arbitration is a matter of consent, not coercion, and a party cannot be required to submit to arbitration any dispute which it has not agreed so to submit.

Student note:  The determination as to whether the parties have entered into an agreement to arbitrate is made by applying ordinary state law principles governing the formation of contracts.

Case:  Highland HC, LLC v. Scott, NY Slip Op 00089 (2d Dept. 2014).

Here is the decision.

Tuesday's issue: A slip-and-fall on water...near the pool, where else?

A taxi driver's liability for a passenger's injury.

Practice point: Plaintiff established her entitlement to summary judgment on the issue of liability as against defendant-driver based on his violation of Vehicle and Traffic Law (VTL) § 1180(a), which provides that "[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing." Plaintiff's affidavit stated that after the accident, defendant-driver apologized to her for partly causing the accident by going 50 mph in a 30 mph zone. The statement is admissible as a party admission, and is sufficient to establish a violation of VTL § 1180(a).

Student note: A violation of traffic law, absent an excuse, constitutes negligence, and therefore plaintiff established a prima facie case of negligence.

Case:  Delgado v. Martinez Family Auto, NY Slip Op 00172 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: A motion to compel arbitration.

Libel per se and slander per se.

Practice point:   For purposes of defending against a cause of action alleging libel per se, statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, as long as they are material and pertinent to the issue to be resolved in the proceeding.

Student note:  The statute of limitations for an action to recover damages for slander is one year, pursuant to CPLR 215[3], measured from the date of the publication or utterance of the allegedly slanderous statement.

Case:  Cullin v. Lynch, NY Slip Op 00086 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A taxi driver's liability for a passenger's injury.

Liabillity of a commercial lessee.

Practice point:  The lessee of a condominium's commercial unit has no duty to maintain stairs that are part of the common elements but not part of its leased premises.

Student note:  Where, as here, the tenant-defendant had no duty to maintain the sidewalk on which the plaintiff allegedly fell, there was no need to address the issue of whether it had constructive notice of a dangerous condition.

Case:  Vivas v. VNO Bruckner Plaza LLC, NY Slip Op 00064 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Libel per se and slander per se.

Ambiguous contracts.

Practice point:  A contract is to be construed in accordance with the parties' intent, which typically is discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. A contract is ambiguous, however, if the terms are reasonably susceptible of more than one interpretation. Where a contract is ambiguous, extrinsic evidence may be considered to determine the parties' intent.

 Student note:  Whether a contract is ambiguous is a question of law to be resolved by the court.

Case:  Obstfeld v. Thermo Niton Analyzers, LLC, NY Slip 08601 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Liability of a commercial lessee.

A general contractor's liability.

Practice point:  Where a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition.

Student note:  Labor Law § 200 is a codification of an owner's or general contractor's common-law duty to provide workers with a safe place to work.

Case:  Hartshorne v. Pengat Tech. Inspections, Inc., NY Slip Op 08596 (2d Dept. 2013).

Here is the decision.

Monday's issue:  Ambiguous contracts.

Power-washing is within the ambit of the Labor Law.

Practice point:  The defendants did not establish their prima facie entitlement to judgment as a matter of law, as they did not demonstrate that the plaintiff, who was injured while power washing buildings in preparation for painting them, was not engaged in a specifically enumerated activity under 12 NYCRR 23-1.4(b)(13). Painting is an activity enumerated under that provision, and the power washing performed here was in preparation for, and a contractual part of, the painting work. Accordingly, the power washing was not "routine maintenance" which is excluded from the ambit of Labor Law § 241(6), but, rather, was surface preparation, which was an integral part of the painting process contemplated by the parties.

Student note:  Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting all areas in which construction, excavation or demolition work is being performed. Section 23-1.4(b)(13) of the Industrial Code defines construction work as including all work "performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures."

Case:  Dixson v. Waterways at Bay Pointe Homeowners Assn., Inc., NY Slip Op 08591 (2d Dept. 2013).

Here is the decision.

Tomorrow''s issue: A general contractor's liability.

A motion for leave to enter a default judgment.

Practice point:  On a motion for leave to enter a default judgment under CPLR 3215[f], a plaintiff must submit proof of service of the summons and the complaint, the facts constituting the claim, and the defendant's default. To defeat the motion, the defendant must establish a reasonable excuse for the default and a potentially meritorious defense to the action.

Student note:  Where, as here, the defendant fails to establish a reasonable excuse for the default, it is unnecessary to determine whether she demonstrated the existence of potentially meritorious defenses to the complaint.

Case:  Diederich v. Wetzel, NY Slip Op 08590 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Power-washing is within the ambit of the Labor Law.

A judgment issued by a foreign country's court.

Practice point:  A money judgment issued by the court of a foreign country is recognized and enforceable in New York State if it is "final, conclusive and enforceable where rendered," pursuant to CPLR 5301. However, the judgment is not conclusive, and thus may not be recognized, if (1) it was "rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law" or (2) "the foreign court did not have personal jurisdiction over the defendant," pursuant to CPLR 5304[a][1], [2].

Student note:  A plaintiff seeking enforcement of the judgment bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition do not exist.

Case:  Daguerre, S.A.R.L. v Rabizadeh, NY Slip Op 08587 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  A motion for leave to enter a default judgment.

Statute of frauds.

Practice point: The cause of action alleging breach of contract was found to be barred by the statute of frauds. It is undisputed that no there was no written agreement to convey half of the interest in the condominium to plaintiff, pursuant to General Obligations Law § 5-703. Similarly, while plaintiff acknowledged that he and defendant never entered into a common-law marriage or otherwise were married, he asserts that they were involved in a 10-year romantic and business relationship and that they entered into an oral agreement to share equally in the assets and resources they gained. Plaintiff testified that he expected this arrangement to last for his lifetime. Thus, the agreement was required to be in writing, pursuant to General Obligations Law § 5-701[a][1].

Student note:  Plaintiff correctly stated that the statute of frauds does not apply to partnerships or joint ventures created at will.  However, here there was no evidence of a joint venture or partnership in which the parties shared control, profits, and losses of their enterprise. Instead, plaintiff described an amorphous kind of partnership and admitted that defendant alone controlled the financial management of their company, including his salary and expenses, thereby establishing that he had no control over the company. Nor did he file tax forms that would demonstrate that theirs was a partnership or joint venture.

Case:  Massey v. Byrne, NY Slip Op 08534 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A judgment issued by a foreign country's court.

Liability for a dog bite off the premises.

Practice point:  Plaintiff sought damages for injuries he allegedly sustained in an attack by a dog being kept by the night watchman at a construction site. Defendant, a general contractor, was constructing buildings on two adjacent properties, and had hired the night watchman and given him permission to keep the dog at the premises. The dog apparently escaped from the premises, and it and another dog attacked plaintiff on a public sidewalk near the site.

Defendant established prima facie that it was unaware of the dog's vicious propensities, through its owner's testimony that he had never received any complaints about the dog and was not aware of any previous incidents involving the dog, and that the dog appeared friendly and well trained when he observed it. However, plaintiff raised an issue of fact through the testimony of a nonparty witness that he had seen the dog bite an electrician working at the construction site approximately one month before the subject incident occurred and was present when defendant's foreman called the owner and told him what had happened.

Student note:  The owner or a party in control of premises may be held liable for injuries resulting from a dog bite that occurred off the premises if it had knowledge of the vicious propensities of the dog and had control of the premises and the capability to remove or confine the animal.

Case:  Hall v. United Founders, Ltd., NY Slip Op08530 (1st Dept. 2013).

Here is the decision.

Monday's issue: Statute of frauds.