Liability of owners of covers and gratings on a street.

Practice point:  Pursuant to 34 RCNY 2-07(b), the owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware.

Student note:  Liability for a dangerous or defective condition on property is generally predicated on ownership, occupancy, control or special use of the property.  Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property.

Case:  Hickman v. Medina, NY Slip Op 01295 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  A handwritten memorandum as an enforceable settlement agreement.

Deed restrictions that run with the land.

Practice point:  New York law favor the free and unobstructed use of realty. A purchaser takes with notice from the record only of incumbrances in the direct chain of title. Absent actual notice before or at the time of the purchase, a land owner is bound only by such restrictions as appear in some deed of record in the conveyance to the owner or a direct predecessors in title. A purchaser is not required to search outside the chain of title.

Student  note:  Deed restrictions are strictly construed against those seeking to enforce them and will be enforced only on the basis of clear and convincing proof.

Case:  Butler v. Mathisson, NY Slip Op 01289 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Liability of owners of covers and gratings on a street.

A claim of unjust enrichment, and a 3211(a)(7) motion to dismiss.

Practice point: The plaintiff must show that (1) the other party was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered.

Student note:   On a motion to dismiss pursuant to CPLR 3211(a)(7), for failure to state a cause of action, the court must afford the pleading a liberal construction, accept as true all facts as alleged in the pleading, give the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, is not considered in deciding the prediscovery motion.

Case:  Alan B. Greenfield, M.D. v. Beach Imaging Holdings, LLC, NY Slip Op 01285 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Deed restrictions that run with the land.

Conflict of laws and the enforceability of employment agreements.

Practice point:  Defendants moved for partial summary judgment as to the unenforceability of nonsolicitation agreements as overbroad. While, by their terms, the agreements were to be governed by and construed in accordance with Delaware law, the parties differed as to whether New York law or Delaware law should be applied.

There is no actual conflict unless each jurisdiction's laws provide different substantive rules that are relevant to the issue at hand and have a significant possible effect on the trial's outcome.

Here, as the parties' briefs disclosed no such conflict, the Appellate Division applied the law of New York as the forum state.

Student note:  Under New York law, an employee's noncompetition agreement is reasonable and, therefore, enforceable only if it: (1) is no greater than is required for the protection of the employer's legitimate interest; (2) does not impose undue hardship on the employee; and (3) is not injurious to the public.

Case:  TBA Global, LLC v Proscenium Events, LLC, NY Slip Op 01266 (1st Dept. 2014).

Here is the decision.

Monday's issue: A claim of unjust enrichment, and a 3211(a)(7) motion to dismiss.

An easement by necessity.

Practice point:  The party asserting that it has an easement by necessity bears the burden of establishing by clear and convincing evidence that there was a unity and subsequent separation of title, and that at the time of severance, an easement over the servient estate was absolutely necessary to obtain access to the party's land.

Student  note:  The necessity must exist in fact and not as a mere convenience, and must be indispensable to the reasonable use of the adjacent property.

Case:  Faviola, LLC v. Patel, NY Slip Op 01447 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Conflict of laws and the enforceability of employment agreements.

Labor Law and a fall from a ladder.

Practice point:  Not every fall from a ladder establishes that the ladder did not provide proper protection Here, the plaintiffs' own submissions demonstrated triable issues of fact as to how the injured plaintiff's accident occurred, including whether he fell because he merely lost his balance. In any event, the defendants and the third-party defendant demonstrated that the plaintiffs' motion was premature, as further discovery may lead to relevant evidence, pursuant to CPLR 3212[f].

The Appellate Division found that the Supreme Court properly denied the plaintiffs' motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant-school district, without prejudice to renew after discovery.

Student note:  In order to establish liability under § 240(1), there must be a violation of the statute, and the violation must be a proximate cause of the plaintiff's injury.

Case:  Degen v. Uniondale Union Free Sch. Dist., NY Slip Op 01146 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  An easement by necessity.

A motion for voluntary discontinuance.

Practice point:  Absent a showing of special circumstances, including prejudice to a substantial right of the defendant or other improper consequences, a motion for a voluntary discontinuance should be granted without prejudice. Here, there was no such showing if the plaintiff were permitted to commence a second action for the same relief in another venue. Any prejudice to the defendants was properly obviated by awarding costs and an attorney's fee as compensation for the time expended in the defense of the action to date. Accordingly, the Appellate Division found no valid reason for the Supreme Court's granting plaintiff's motion with prejudice.

Student note:  The plaintiff is not required to demonstrate any basis for seeking a voluntary discontinuance.

Case:  American Tr. Ins. Co. v. Roberson, NY Slip Op 01144 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Labor Law and a fall from a ladder.

An auto accident, summary judgment, and comparative negligence.

Practice point:  There can be more than one proximate cause of an accident, and both drivers have a duty to exercise reasonable care under the circumstances to avoid an accident. As a result, even where there is evidence that another driver involved in the accident was negligent as a matter of law, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law. So, a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident.

Student note: A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law.

Case:  Adobea v. Junel, NY Slip Op 01143 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A motion for voluntary discontinuance.

Disclosure of privileged medical records.

Practice point:  The Appellate Division found that the Supreme Court properly denied the plaintiffs' motion for a protective order relating to the disclosure of medical records outside the period of time covered by the  pregnancy. at issue in this medical malpractice action. The plaintiff waived her physician-patient privilege, pursuant to CPLR 4504[a], when, without asserting the privilege, she answered certain questions at a hearing conducted pursuant General Municipal Law § 50-h and when she voluntarily provided certain information to medical personnel.

Student note:  The privilege does not attach to information constituting mere facts and incidents of a plaintiff's medical history.

Case:  Knowles v. Saint Joseph's Med. Ctr., NY Slip Op 00968 (2d Dept. 2014).

Here is the decision.

Monday's issue: An auto accident, summary judgment, and comparative negligence.

The effect of affidavits of service.

Practice point:  Here, the affidavit of service indicating that the respondent was served pursuant to CPLR 308(2) by delivery of the papers to a person of suitable age and discretion was insufficient to establish, prima facie, that the respondent was validly served pursuant to that section. However, a second affidavit of service constituted prima facie evidence of proper service of the summons and complaint pursuant to CPLR 308(1), and of proper service of the notice required by Real Property Actions and Proceedings Law § 1303. The respondent's bare and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the proof of proper service set forth in the affidavit..

Student note:  Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the affidavit.

Case:  Deutsche Bank Natl. Trust Co. v. Quinones, NY Slip Op 00959 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Disclosure of privileged medical records.

Failure to negotiate in good faith and exemplary damages.

Practice point:  Although the Supreme Court had authority to impose sanctions if it determines, after a hearing, that the plaintiff failed to negotiate in good faith in a mandatory foreclosure settlement conference, it did not have authority to include such a provision in the judgment in the absence of any application for that relief.  In addition, the court's imposition of exemplary damages, and the effective use of those exemplary damages to award a reduction of the principal balance of the subject mortgage, was done without notice to the plaintiff that the court was contemplating such a sanction, and deprived the plaintiff of its right to due process.

Student note:  CPLR 3408 does not require the plaintiff to make the exact offer desired by the defendant, and the plaintiff's failure to make that offer cannot be construed as a lack of good faith.

 Case:  Bank of Am. v. Lucido, NY Slip Op 00956 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: The effect of affidavits of service.