Disqualification of counsel.

Practice point:  A movant seeking disqualification of opposing counsel bears a heavy burden  As a party has a right to be represented by counsel of its choice, any restrictions on that right will be carefully scrutinized.  This right will be balanced against a potential client's right to have confidential disclosures made to a prospective attorney subject to the protections afforded by an attorney's fiduciary obligation to keep confidential information secret, pursuant to New York Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.18.

The court will consider whether a motion to disqualify, made during ongoing litigation, is made for tactical purposes, such as to delay litigation and deprive an opponent of quality representation. The decision of whether to grant a motion to disqualify is discretionary with the motion court.

Student note:  Rule 1.6(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) defines "[c]onfidential information" as "information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential."

Case:  Mayers v. Stone Castle Partners, LLC, NY Slip Op 00295 (1st Dept. 2015)

Here is the decision.

Tuesday's issue: Premises liability when a guest falls.

Application of the storm-in-progress rule.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.