Practice point: The Appellate Division reversed the motion court and found that there were issues of fact as to the applicability of the storm in progress rule. In support of its summary judgment motion, defendant submitted an affidavit by a
certified meteorologist who stated that on the day of plaintiff's accident, from midnight until
approximately 2 p.m., there was a winter storm. Plaintiff's
accident happened at approximately 11:30 a.m. However, the weather data
from one of the three location sources on which the meteorologist based
his analysis also shows that the last snowfall was light and ceased at 6:25
a.m. and that freezing rain fell until 8:27
a.m. and did not start falling again until 11:35 a.m. A surveillance
video shows that there was no precipitation at the time of plaintiff's
fall.
The Appellate Division found triable issues of fact as to
whether plaintiff's accident occurred while the storm was still in
progress or whether there was a significant lull in the storm, and
whether the three hours that elapsed between the last freezing rain and
plaintiff's accident afforded defendant a reasonable opportunity to
clear the steps on which plaintiff fell.
In addition, the record presents triable issues of fact as to whether the icy condition that caused plaintiff's fall existed prior to the storm, and whether defendants lacked notice of the preexisting condition. The affidavit of defendant's expert states that at
the start of the day "approximately 17
inches of snow and ice cover was present on untreated, undisturbed and
exposed outdoor surfaces in the vicinity of the subject area." While the
expert states that frozen precipitation fell intermittently during the
day of the accident, he did not state that the alleged icy condition on
the steps resulted from that precipitation and not from remnants of ice
that may have remained on the steps from the prior snowfalls.
Finally, plaintiff and her son testified that the steps had been
icy for some days before the accident. Defendant submitted no evidence
as to when the steps had last been inspected or cleaned of snow and ice
or as to the condition of the steps on the day of the accident or the
days immediately preceding it. Its superintendent's testimony about its
general cleaning procedures alone is insufficient to establish that
defendant lacked notice of the alleged condition before the accident.
Student note: A temporary lull or break in the storm at the time of the
accident does not necessarily establish a reasonable opportunity to
clear away the hazard. However, if the storm has passed and
precipitation has tailed off to such an extent that there is no longer
any appreciable accumulation, then the rationale for continued delay
abates, and storm-in-progress rule will not be applied.
Case: Ndiaye v. NEP W. 119th St. LP, NY Slip Op 00279 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: Disqualification of counsel.
January 15, 2015
January 14, 2015
Unambiguous language in a stipulation controls.
Practice point: The Appellate Division reversed the motion court and determined that defendants-appellants were entitled to a declaration that the
parties' December 1, 2010 stipulation had expired and was unenforceable.
In the stipulation, the parties agreed that the closing date of the
sale of the property should take place no later than May 31, 2011. The motion court found that the parties' intent was not to close
by the date set forth in the stipulation, but, rather, the intent was to
move the sale forward to a closing within a reasonable time. The Appellate Division held that the
parties' intent should have been determined from the unambiguous
language of the stipulation, as it is a well recognized precept of
contract construction that the best evidence of what parties to a
written agreement intend is what they say in their writing,
Student note: Where, the term in a stipulation is not ambiguous, it is reversible error for the court to consider extrinsic evidence such as the conduct of the parties.
Case: Bank of Am. N.A. v. Chau T. Lam, NY Slip Op 00282 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: Application of the storm-in-progress rule.
Student note: Where, the term in a stipulation is not ambiguous, it is reversible error for the court to consider extrinsic evidence such as the conduct of the parties.
Case: Bank of Am. N.A. v. Chau T. Lam, NY Slip Op 00282 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: Application of the storm-in-progress rule.
January 13, 2015
Constructive notice and a defendant's motion for summary judgment ina slip and fall action.
Practice point: A defendant has constructive notice of a dangerous condition when the
condition has been visible and apparent long enough for the defendant
to have discovered and remedied it. To meet its burden on the issue of constructive notice, a
defendant must offer some evidence as to when the area in question was
last cleaned or inspected relative to the time when the plaintiff fell. Reference to general cleaning practices is insufficient to
establish a lack of constructive notice in the absence of evidence
regarding specific cleaning or inspection of the area in question.
Student note: A defendant moving for summary judgment dismissing the complaint in a slip-and-fall case must establish, prima facie, that it did not create the dangerous condition that caused the plaintiff's injuries and had neither actual nor constructive notice of the condition when the plaintiff was injured.
Case: Garcia-Monsalve v. Wellington Leasing, L.P., NY Slip Op 09102 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Unambiguous language in a stipulation controls.
Student note: A defendant moving for summary judgment dismissing the complaint in a slip-and-fall case must establish, prima facie, that it did not create the dangerous condition that caused the plaintiff's injuries and had neither actual nor constructive notice of the condition when the plaintiff was injured.
Case: Garcia-Monsalve v. Wellington Leasing, L.P., NY Slip Op 09102 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Unambiguous language in a stipulation controls.
January 12, 2015
An employer's liability for an employee's bad acts.
Practice point: The Appellate Division determined that the complaint fails to state a cause of action for conversion, and affirmed dismissal. The employee took property from plaintiffs'
apartment while he was supposed to be installing a cable box in the
neighboring apartment. His conduct was not in furtherance of the defendant's business and within the scope of his employment, but, instead, was based on his
own personal motives.
Student note: Plaintiffs argue that the defendant can be held vicariously liable for its employee's tortious conduct because the conduct was foreseeable. However, in determining the threshold legal question, namely, the scope of the defendant's duty to plaintiffs, the Appellate Division determined that the harm to plaintiffs was not within the reasonably foreseeable risks of the defendant's sending its employee to work in the neighboring apartment.
Case: Sterk-Kirch v. Uptown Communications & Elec., Inc., NY Slip Op 00215 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: Constructive notice and a defendant's motion for summary judgment in a slip and fall action.
Student note: Plaintiffs argue that the defendant can be held vicariously liable for its employee's tortious conduct because the conduct was foreseeable. However, in determining the threshold legal question, namely, the scope of the defendant's duty to plaintiffs, the Appellate Division determined that the harm to plaintiffs was not within the reasonably foreseeable risks of the defendant's sending its employee to work in the neighboring apartment.
Case: Sterk-Kirch v. Uptown Communications & Elec., Inc., NY Slip Op 00215 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: Constructive notice and a defendant's motion for summary judgment in a slip and fall action.
January 9, 2015
The recovery of attorneys' fees in a landlord-tenant suit.
Practice point: Under Real Property Law § 234, when a residential lease provides for a
landlord's recovery of attorneys' fees resulting from a tenant's
failure to perform a lease covenant, a reciprocal covenant is implied
requiring the landlord to pay the tenant's attorneys' fees incurred as a
result of the tenant's successful defense of an action or
summary proceeding commenced by the landlord arising out of the lease.
Student note: To support the award of fees, the tenant must be the prevailing party, that is, the result must be substantially favorable to the tenant.
Case: Matter of 251 CPW Hous. LLC v. Pastreich, NY Slip Op 00208 (1st Dept. 2015)
Here is the decision.
Monday's issue: An employer's liability for an employee's bad acts.
Student note: To support the award of fees, the tenant must be the prevailing party, that is, the result must be substantially favorable to the tenant.
Case: Matter of 251 CPW Hous. LLC v. Pastreich, NY Slip Op 00208 (1st Dept. 2015)
Here is the decision.
Monday's issue: An employer's liability for an employee's bad acts.
January 8, 2015
Misplacing the summons and a motion to vacate.
Practice point: A defendant moving to vacate a default in appearing or answering the
complaint pursuant to CPLR 5015(a)(1) must establish a reasonable excuse
for the default and demonstrate the existence of a potentially
meritorious defense (see CPLR 5015[a][1]. Here, the Appellate Division determined that the defendant's conclusory allegations that it
"misplaced" the summons and complaint, as well as the plaintiff's motion
for leave to enter a default judgment against it and the order granting
that motion, did not constitute a reasonable excuse for its default. In addition, the insurance carrier's lengthy delay before
defending the action, without more, was insufficient to establish a
reasonable excuse.
Student note: As the defendant failed to demonstrate a reasonable excuse for its default, the Appellate Division did not consider whether it proffered a potentially meritorious defense to the action.
Case: Blythe v. BJ's Wholesale Club, Inc., NY Slip Op 09094 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: The recovery of attorneys' fees in a landlord-tenant suit.
Student note: As the defendant failed to demonstrate a reasonable excuse for its default, the Appellate Division did not consider whether it proffered a potentially meritorious defense to the action.
Case: Blythe v. BJ's Wholesale Club, Inc., NY Slip Op 09094 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: The recovery of attorneys' fees in a landlord-tenant suit.
January 7, 2015
Law office failure and a motion to vacate a default.
Practice point: The Appellate Division determined that the plaintiff's bare allegation of law office failure was insufficient to show a reasonable excuse for its default.
Student note: A party seeking to vacate an order entered upon its failure to oppose a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1].
Case: Bank of N.Y. v. Young, NY Slip Op 09090 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Misplacing the summons and a motion to vacate.
Student note: A party seeking to vacate an order entered upon its failure to oppose a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1].
Case: Bank of N.Y. v. Young, NY Slip Op 09090 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Misplacing the summons and a motion to vacate.
January 6, 2015
The doctrine of assumption of risk as it relates to the duty of care.
Practice point: The doctrine is not a defense based on a
plaintiff's culpable conduct, but, instead, is a measure of the
defendant's duty of care to participants in certain types of athletic or
recreational activities. Under the theory, a plaintiff who freely accepts a
known risk commensurately negates any duty on the part of the defendant
to safeguard him or her from the risk.
Student note: Because determining the existence and scope of a duty of care requires an examination of plaintiff's reasonable expectations of the care owed by others, the plaintiff's consent does not merely furnish the defendant with a defense; it effectively eliminates the duty of care that otherwise would exist.
Case: Braile v. Patchogue Medford School Dist. of Town of Brookhaven, NY Slip Op 08949 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Law office failure and a motion to vacate a default.
Student note: Because determining the existence and scope of a duty of care requires an examination of plaintiff's reasonable expectations of the care owed by others, the plaintiff's consent does not merely furnish the defendant with a defense; it effectively eliminates the duty of care that otherwise would exist.
Case: Braile v. Patchogue Medford School Dist. of Town of Brookhaven, NY Slip Op 08949 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Law office failure and a motion to vacate a default.
January 5, 2015
A court's authority to reach the issue of attorneys' fees, and separate fees for appellate work.
:Practice point: A court has no inherent authority to reach the issue of attorneys' fees sua sponte. Rather, a court has inherent authority over attorneys' fees in two situations, namely, when an attorney asks the court to approve a fee, or a client complains about a fee.
Student note: Where the parties expressly contemplate additional fees in connection with a successful appeal, such an award is legally and ethically permissible.
Case: Stewart v. New York City Tr. Auth., NY Slip Op 09063 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: The doctrine of assumption of risk as it relates to the duty of care.
Student note: Where the parties expressly contemplate additional fees in connection with a successful appeal, such an award is legally and ethically permissible.
Case: Stewart v. New York City Tr. Auth., NY Slip Op 09063 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: The doctrine of assumption of risk as it relates to the duty of care.
January 2, 2015
Defendant's summary judgment motion in a legal malpractice action.
Practice point: Defendant-attorney did not meet its burden of presenting evidence in admissible form
establishing that plaintiff is unable to prove at least one of these
essential elements of the claim, namely, that the attorney failed to exercise the ordinary
reasonable skill and knowledge commonly possessed by a member of the
legal profession and that the attorney's breach of this duty proximately
caused plaintiff to sustain actual and ascertainable damages.
Student note: A defendant cannot sustain its burden merely by pointing out gaps in plaintiff's proof.
Case: Bivona v. Danna & Assoc., P.C., NY Slip Op 08948 (2d Dept. 2014)
Here is the decision.
Monday's issue: A court's authority to reach the issue of attorneys' fees, and separate fees for appellate work.
Student note: A defendant cannot sustain its burden merely by pointing out gaps in plaintiff's proof.
Case: Bivona v. Danna & Assoc., P.C., NY Slip Op 08948 (2d Dept. 2014)
Here is the decision.
Monday's issue: A court's authority to reach the issue of attorneys' fees, and separate fees for appellate work.
January 1, 2015
Court holiday.
The courts are closed to mark New Year's Day.
Tomorrow's issue: Defendant's summary judgment motion in a legal malpractice action.
Tomorrow's issue: Defendant's summary judgment motion in a legal malpractice action.
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