Denial of motiom for summary judgment, with leave to renew.

Practice point:  Plaintiff moved for summary judgment on the issue of liability approximately two months after joinder of issue and prior to the exchange of any discovery.  The Appellate Division affirmed the denial of the motion, with leave to renew after depositions of the parties.

Student note:  A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment, and the opposing party is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated, pursuant to CPLR 3212[f].

Case:  Brea v. Salvatore, NY Slip 06305 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  An assault by an intoxicated individual, and leave to amend.

A CPLR 1018 motion to substitute a nonparty as plaintiff, and to amend the caption accordingly.

Practice point:  The Appellate Division affirmation the granting of the motion based on plaintiff's submission of evidence that the note at issue was in Nationstar's possession, that the mortgage was assigned to Nationstar after the action was commenced, and that, therefore, Nationstar is the real plaintiff in interest.

Student note:  The determination to substitute or join a party pursuant to CPLR 1018 is within the discretion of the trial court.

Case:  Aurora Loan Servs., LLC v. Lopa, NY Slip Op 06303 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Denial of motion for summary judgment, with leave to renew.

Doctrine of primary assumption of risk.

Practice point:  Pursuant to the doctrine, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.  This includes risks associated with the construction of the playing surface and any open and obvious condition on it. However, participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

Student note:  Awareness of risk is not to be determined in a vacuum, but, rather, is to be assessed against the background of the skill and experience of the particular plaintiff.

Case:  Brown v. Roosevelt Union Free School Dist., NY Slip Op 06204 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A CPLR 1018 motion to substitute a nonparty as plaintiff, and to amend the caption accordingly.

A FOIL request and redaction.

Practice point:  Petitioner requested documents from the New York City Fire Department, pursuant to the Freedom of Information Law.  The Fire Department provided copies of the documents, but with numerous items of information redacted.  After an in camera inspection of unredacted copies, the Supreme Court directed the Department to provide petitioner with legible unredacted copies.

The Appellate Division affirmed, to the extent that it found that the Department failed to articulate a particularized and specific justification for any of the redacted information at issue, except for the residence addresses contained in the subject documents. It found that the Department's conclusory assertions that the redacted information, other than residence addresses, fell within a statutory exemption were insufficient to meet its burden of demonstrating that the requested information was exempt from disclosure.

However, the Appellate Division concluded that disclosure of the residence addresses would constitute an unwarranted invasion of personal privacy, as under the circumstances of this case, the privacy interests at stake outweigh the public interest in disclosure of that information.  It modified the judgment so as to permit redaction of the residence addresses.

Student note:  Under FOIL, government records are presumptively open for public inspection and copying unless they fall within a statutory exemption specified in Public Officers Law § 87(2).  The exemptions are narrowly construed in order to ensure maximum public access, and the burden rests on the agency to demonstrate that the requested material qualifies for exemption.  To meet its burden, the agency must articulate a particularized and specific justification for nondisclosure.

Case:  Matter of Villalobos v. New York City Fire Dept., NY Slip Op 06249 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Doctrine of primary assumption of risk.

The whistleblower statute and the underlying claims that gave rise to the complaint.

Practice point:  The Appellate Division was asked to decide the extent to which bringing an action under New York's whistleblower statute, codified at Labor Law § 740, bars the maintenance of other claims to redress the wrongful conduct that prompted the report of abuse resulting in the employer's retaliatory action.  The Appellate Division concluded that, based on the statute's purpose and the relief it affords, claims predicated on the statute are distinct from claims predicated upon the underlying tortious conduct identified by plaintiffs, and that, in this case, the causes of action for sexual harassment and negligence may go forward.

Student note:  The Appellate Division agreed with plaintiffs that the mere incorporation by reference of various allegations in the complaint alleging retaliation in the sexual harassment and negligence causes of action does not warrant a contrary conclusion.

Case:  Lee v. Woori Bank, NY Slip Op 06299 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A FOIL request and redaction.

A settlement is approved nunc pro tunc.

Practice point:  The Appellate Division reversed the Court of Claims' denial of claimant's motion for an order approving the settlement of a claim nunc pro tunc under Workers' Compensation Law § 29(5).

The Appellate Division determined that the record does not show that the delay in obtaining approval was attributable solely to the fault or neglect of claimant; indeed, the record supports the conclusion that the carrier unwittingly lulled claimant into believing that it was willing to waive claimant's failure to obtain timely consent or court approval of the settlement. In fact, said the Appellate Division, the carrier made payments to claimant for eight years without objection, after it was made aware of the facts and circumstances surrounding the settlement and claimant's medical condition.

Moreover, respondent, the Liquidation Bureau, suffered no demonstrable prejudice as a result of any delay attributable to claimant.

Student note:  A judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even in cases where the approval is sought more than three months after the date of the settlement, provided that the petitioner can establish that (1) the amount of the settlement is reasonable; (2) the delay in applying for a judicial order of approval was not caused by the petitioner's fault or neglect; and (3) the carrier was not prejudiced by the delay.

Case:  Amacio v. State of New York, NY Slip Op 06298 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: The whistleblower statute and the underlying claims that gave rise to the complaint.

A failed motion to dismiss the defense of undue influence.

Practice point:  The Appellate Division affirmed the denial of the motion in this action where petitioner, the executor of decedent's will, sought permission to pay himself a sum that decedent allegedly owed him. The debt is allegedly evidenced by a promissory note that decedent executed 10 days before he died.  The Appellate Division found that the record contains evidence that payment would benefit petitioner while rendering the estate insolvent, a result that would have been contrary to the decedent's estate plan. Moreover, the note and accompanying letter of instruction were prepared by petitioner's counsel as opposed to the decedent's own estate planning counsel. These factors, combined with the evidence of the decedent's deteriorating health, suffice to raise a triable issue of fact as to whether the note was the product of undue influence.

Student note:  The elements of undue influence are motive, opportunity, and the actual exercise of that undue influence.  As direct proof of undue influence is rare, its elements may be established by circumstantial evidence.

Case:  Matter of Kotick v. Shvachko, NY Slip Op 06011 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A sertlement is approved nunc pro tunc.

Family Court's subject matter jurisdiction.

Practice point:  Pursuant to Family Court Act § 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain prescribed acts that occur "between spouses or former spouses, or between parent and child or between members of the same family or household."

Pursuant to the statute, "members of the same family or household" include, among others, "persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time." (

Student note:  Family Court is a court of limited jurisdiction, constrained to exercise only those powers conferred upon it by the New York Constitution or by statute.

Case:  Matter of Cambre v. Kirton, NY Slip 06242 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A failed motion to dismiss the defense of undue influence.

Contract interpretation, on the motion and on appeal

Practice point:  The court's function is to apply the meaning intended by the parties, as derived from the language of the contract itself.  In interpreting a contract, words should be accorded their fair and reasonable meaning, and the aim is a practical interpretation of the expressions of the parties to the end that there be a realization of the parties' reasonable expectations. A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms, and the fact that the parties offer conflicting interpretations of a contract does not render it ambiguous.  Where the parties' intention may be gathered from the four corners of the instrument, interpretation of the contract is a question of law and no trial is necessary to determine the contract's legal effect, if any.

Student note:  On appeal, the standard of review is for the Appellate Division to examine the contract's language de novo.

Case:  Dreisinger v. Teglasi, NY Slip Op 06197 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Family Court's subject matter jurisdiction.

Default not entered within one year.

Practice point:  The Appellate Division affirmed the granting of the motion to dismiss pursuant to CPLR 3215(c). Plaintiff failed to take any proceedings for entry of judgment within one year after defendant defaulted, and plaintiff failed to demonstrate sufficient cause why the motion should be denied.

Student note:  CPLR 3215(c), which is titled "Default not entered within one year," states, in pertinent part, 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."

The statute prevents parties who have asserted claims from unreasonably delaying the termination of actions, and to avoid inquests on stale claims.  Failure to take proceedings for entry of judgment may be excused, however, upon a showing of sufficient cause. To establish sufficient cause, the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action.

Case:  Aurora Loan Servs., LLC v. Hiyo, NY Slip Op 06100 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Contract interpretation, on the motion and on appeal.

Summary judgment in an action alleging a school's negligent supervision.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss this action in which infant plaintiff allegedly sustained injuries in his former school when a fellow student allegedly assaulted him on multiple occasions, and, when inside a classroom, a group of students repeatedly kicked him.  Defendant moved for summary judgment dismissing the complaint insofar as asserted against it, arguing that it did not have notice of prior similar conduct by the offending students.
The Appellate Division found that, in support of the motion, defendant ailed to establish, prima facie, that it acked sufficiently specific knowledge or notice of the dangerous conduct that allegedly caused the infant plaintiff's injuries. The moving papers failed to eliminate all triable issues of fact as to whether they had knowledge of a particular student's dangerous propensities arising from his involvement in other altercations with infant plaintiff. The moving papers also failed to eliminate all triable issues of fact as to whether a teacher failed to take the requisite energetic steps to intervene to prevent the infant plaintiff's injuries at the hands of a group of his classmates.

Student note:  Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.

Case:  Amandola v Roman Catholic Diocese of Rockville Ctr., NY Slip Op 06099 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Default not entered within one year.