Vacating a default.

Practice point:  To vacate their default in opposing the plaintiffs' motion for summary judgment on the issue of liability, the defendants were required to demonstrate a reasonable excuse for their default and a potentially meritorious opposition to that motion, pursuant to CPLR 5015[a][1].

Student note: While the decision whether to vacate a default judgment rests within the sound discretion of the trial court, a disposition on the merits is favored.

Case:  Bardes v. Pintado, NY Slip Op 02003 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  An out-of-possession landlord's liability for a fall through an open trap door.

A cause of action for false arrest or imprisonment.

Practice point:  A plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged".

Student note:  Probable cause serves as a legal justification for the arrest, and is an affirmative defense to the claim.

Case:  Fakoya v. City of New York, NY Slip Op01709 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Vacating a default.

Res judicata, and the preclusive effect of summary judgment.

Practice point:  Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding. It operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding.

Student note:  An order granting a summary judgment motion is on the merits and has preclusive effect.

Case:  Cox v. Hubbard, NY Slip Op 01705 (2d Dept. 2014).

 Here is the decision.

Monday's issue:  A cause of action for false arrest or imprisonment.

Compulsory arbitration and the CPLR 78 standard.

Practice point:  Where the parties are subjected to compulsory arbitration, the arbitration award must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78.

Student note:  A hearing officer's determinations of credibility are generally not reviewable because the hearing officer was in a position to observe the witnesses and was able to perceive the inflections, the pauses, the glances and gestures that combine to form an impression of either candor or deception.

Case:  Matter of Brito v. Walcott, NY Slip Op 01813 (1st Dept.2014).

Here is the decision.

Tomorrow's issue: Res judicata, and the preclusive effect of summary judgment.

Labor Law 200 and 241(6) claims.

Practice point:  As the essence of plaintiff's claim is that the safety equipment provided to him was inadequate, and the defendant-general contractor did not dispute that it provided the safety equipment plaintiff used, plaintiff may hold the defendant-general contractor liable under Labor Law § 200 for any negligence in its providing safety equipment shown to have contributed to his injury.

Student note:  Plaintiff's Labor Law § 241(6) claim was dismissed. The complaint alleges violations of 12 NYCRR 23-1.7(h) and 12 NYCRR 23-1.8(c), which require adequate protective equipment and apparel for workers using or handling "corrosive substances and chemicals." In support of their motion for summary judgment, defendants provided expert evidence that these Industrial Code sections are inapplicable here, as the particular substance that injured plaintiff is not considered a corrosive substance or chemical, and plaintiff's opposition to the motion failed to adequately rebut this evidence.

Case:  Flores v. Infrastructure Repair Serv., LLC, NY Slip Op 01811 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Compulsory arbitration and the CPLR 78 standard.

Liability for trivial defects.

Practice point:  A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a person might merely stumble, stub his or her toes, or trip. In determining whether a defect is trivial, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury,.

Student note:  Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable.

Case:  Abalo v. Santorelli, NY Slip Op 01701 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Labor Law 200 ad 241(6) claims.

Motions for leave to renew and reargue.

Practice point:  The Appellate Division held that plaintiff's motion for leave to renew was properly denied in the absence of new facts, citing CPLR 2221[e][2].

Student note:  No appeal lies from the denial of a motion to reargue.

Case:  Kaplan v. U.S. Coal Corp., NY Slip Op 01681 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Liability for trivial defects.

Duties relating to an easement.

Practice point:  While an easement generally imposes no affirmative duty on the owner of the servient estate to maintain and repair structures, such an owner may be required to perform maintenance functions where it makes use of the easement for its own purposes and that use does not interfere with the legitimate activities of the holder of the dominant estate.

Student note:  To the extent that the servient estate's owner may incur a duty, it is that of a landowner, namely, to maintain the portion of its premises that is subject to the easement in a reasonably safe condition, provided that such maintenance subjects the owner of the servient estate to no unusual hazards and requires no special expertise.

Case:  Kleyner v. City of New York, NY Slip Op 01584 (2d Dept. 2014).

Here is the decision.

Monday's issue: Motions for leave to renew and reargue.

Vacating a default judgment.

Practice proint:  The defendant was not entitled to vacatur of its default pursuant to CPLR 317. The defendant failed to rebut the plaintiff's evidence that, for a period of more than five years, the defendant failed to file with the Secretary of State the required biennial form that would have apprised the Secretary of its current address, pursuant to Limited Liability Company Law § 301[e]). TheAppellate Division found that the defendants' failure to personally receive copies of the summons and complaint was a result of a deliberate attempt to avoid notice of actions commenced against it.

Student note:  To successfully oppose a motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its default and the existence of a potentially meritorious defense, pursuant to CPLR 5015[a][1].  Here, the defendant contended that it maintained an old address on file with the Secretary of State, and denied receipt of copies of the summons and complaint. However, the Appellate Division held that the defendant's unexplained failure to keep the Secretary of State apprised of its current address over a significant period of time did not constitute a reasonable excuse.

Case:  Cruz v. Keter Residence, LLC, NY Slip Op 01575 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Duties relating to an easement.

Dismissal of a complaint as abandoned.

Practice point:  To avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c), a plaintiff must offer a reasonable excuse for the delay and must demonstrate that the complaint is meritorious.  Here, plaintiff's excuse of law office failure was vague, conclusory, and unsubstantiated, and so it was insufficient to explain the extended delay in moving to enter a default judgment. The court will not consider additional allegations regarding the law office failure if they are submitted for the first time in the
plaintiff's reply affirmation.

Student note:  CPLR 3215(c), entitled "Default not entered within one year," provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."

Case: GMAC v. Minewiser, NY Slip Op 01581 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Vacating a default judgment.

The denial of a request for a Frye hearing.

Practice point:  The Appellate Division found that the court did not improvidently exercise its discretion in denying plaintiffs' request for a Frye hearing to determine the admissibility of the anticipated testimony of a biomechanical engineer. His lack of medical training did not render him unqualified to render an expert opinion that the force of the motor vehicle accident could not have caused the alleged injuries. In light of his education, background, experience, and areas of specialty, he was able him to testify as to the mechanics of injury.

Student note:  Plaintiffs' challenge to the expert's qualifications and the fact that his opinion conflicted with that of defendant's orthopedic expert go to the weight of the testimony and not its admissibility.

Case:  Vargas v. Sabri, NY Slip Op 01666 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Dismissal of a complaint as abandoned.