Dismissal of a Labor Law § 240(1) claim,

Practice point:  The Appellate Division reversed the denial of defendant's motion for summary judgment and the granting plaintiffs' cross motion for partial summary judgment on liability, and dismissed the complaint. Plaintiff was struck by a pipe while it was being flushed clean with a highly pressurized mixture of air, water, and a rubber rabbit device. The movement of this mixture through the pipe failed to bring the mechanism of plaintiff's injury within the ambit of the statute because it did not involve the direct consequence of the application of the force of gravity to an object. The mixture in the pipe did not move through the exercise of the force of gravity, but, instead, was intentionally propelled through the pipe through the use of high pressure.

Case:  Joseph v. City of New York, NY Slip Op 06649 (1st Dep't October 11, 2016)

Here is the decision.

Tomorrow's issue:  Dismissal of a claim based on a fall on the stairs.

A shareholders's right to inspect the books and records.

Practice point:  In New York, shareholders have both statutory and common-law rights to inspect a corporation's books and records, so long as the shareholders seek the inspection in good faith and for a valid purpose.  A shareholder's concerns about board mismanagement and excessive expenditures and wasteful dissipation of corporate assets are, on their face, a proper purpose, even if the inspection ultimately establishes that the board had engaged in no wrongdoing.  Because the common-law right of inspection is broader than the statutory right, petitioners are entitled to inspect books and records beyond the specific materials delineated in Business Corporation Law § 624 (b) and (e).

Case:  Matter of Pokoik v. 575 Realties, Inc., NY Slip Op 06648 (1st Dep't October 11, 2016)

Here is the decision.

Monday's issue:  Dismissal of a Labor Law § 240(1) claim,

A stipulation of settlement in a divorce action.

Practice point:  A stipulation of settlement which is incorporated but not merged into a judgment of divorce retains the character of an independent contract and survives as a basis for suit.  When the terms of such a stipulation are clear and unambiguous, the general rule is that the intent of the parties is to be found within the four corners of the agreement, and not from extrinsic evidence,

Student note:  Whether an agreement is ambiguous is a question of law for the courts.

Case:  Leibowitz v. Leibowitz, NY Slip Op 06475 (2d Dep't October 5, 2016)

Here is the decision.

Tomorrow's issue: A shareholder's right to inspect the books and records.

Real Property Law and enforcing restrictive covenants.

Practice point:  Pursuant to RPAPL 1951(1),  the covenant will not be enforced if, at the time enforceability of the restriction is brought into question, it seems that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability.

Student note:  The party seeking relief from the covenant bears the burden of proof.

Case:  Blue Is. Dev., LLC v. Town of Hempstead, NY Slip Op 06465 (2d Dep't October 5, 2016)

Here is the decision.

Tomorrow's issue:  A stipulation of settlement in a divorce action.

A posttrial motion to set aside the verdict.

Practice point:  The Order granting plaintiff's posttrial motion to set aside the verdict was reversed, on the law and the facts, the jury verdict was reinstated, and the complaint was dismissed.

Plaintiff had presented to defendant-dentists, and then, two years later, a tumor was discovered in the lower left side of plaintiff's mouth. Plaintiff alleges that the tumor should have been detected on the bitewing x-ray taken at defendants' office two years earlier.

At trial, the jury was presented with conflicting evidence as to whether there were sufficient grounds to investigate and take further x-rays. It was further asked to determine the credibility of the defense expert, who plaintiff's trial counsel asserted lied about the issues in the case. The jury's verdict implicitly rejected that contention, and resolved the conflicting testimony in defendants' favor.  In the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict, with particular deference given to jury verdicts in favor of defendants in tort cases.

Student note:  The verdict was based on a fair interpretation of the evidence and should not have been disturbed.

Case:  Cordero v. Young, NY Slip Op 06543 (1st Dep't October 6, 2016)

Here is the decision.

Tomorrow's issue:  Real Property Law and enforcing restrictive covenants.

Court holiday.

Tomorrow's issue:  A posttrial motion to set aside the verdict.

Wheel stops and the risk of harm.

Practice point:  While a property owner has a duty to maintain its premises in a reasonably safe manner for its patrons, there is no duty to protect or warn against an open and obvious condition which is not inherently dangerous.  A wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm.

Case:  Lacerra v. CVS Pharmacy, NY Slip Op 06474 (2d Dep't October 5 2016)

Here is the decision.

Tuesday's issue: A posttrial motion to set aside the verdict.

A trivial defect is nonactionable.

Practice point:  The height differential between the marble step and the bull-nosing on which plaintiff caught her heel, causing her to fall, was one-eighth to one-quarter of an inch. This defect, as a matter of law, did not constitute a trap or nuisance, nor were the intrinsic characteristics or the surrounding circumstances such that they magnified the danger posed by this otherwise insignificant defect. So, this defect was trivial as a matter of law, and, as a result, nonactionable.

Case:  Atkinson v. Key Real Estate Assoc., LLC, NY Slip Op 06160 (1st Dep't September 27, 2016)

Here is the decision.

Tomorrow's issue:  Wheel stops and the risk of harm.

Prima facie tort.

Practice point:  The elements of a cause of action alleging prima facie tort are: (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or a series of acts which would otherwise be lawful. To make out a claim sounding in prima facie tort, a plaintiff must have suffered specific and measurable loss, which requires an allegation of special damages, that is, the loss of something having economic or pecuniary value.

Student note:  Prima facie tort provides a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy. It does not to provide a catch-all alternative for every cause of action which cannot stand on its own.

Case:  Berland v.. Chi, NY Slip Op 06188 (2d Dep't September 28, 2016)

Here is the decision.

Tomorrow's issue: A trivial defect is nonactionable.

A claim for injuries allegedly sustained while conducting a repair work estimate.

Practice point:  The Appellate Division reversed the order dismissing the complaint in this action where plaintiff had gone to defendant's property to prepare an estimate to repair the back porch. While plaintiff was standing on the porch, it collapsed and plaintiff was injured.

Student note:  Since the defendant failed to establish prima facie entitlement to judgment as a matter of law, it is not necessary for the court to review the sufficiency of plaintiff's opposition papers.

Case:  Arcabascio v. Bentivegna, NY Slip Op 06187 (2d Dep't September 28, 2016)

Here is the decision.

Tomorrow's issue: Prima facie tort.

Summary judgment on a legal malpractice claim.

Practice point:  The Appellate Division affirmed denial of defendant law firm's motion to dismiss. The bank made a prima facie showing that the law firm departed from the standard of care in connection with the closing of a residential real estate mortgage loan to plaintiff by failing to advise that the property lacked a certificate of occupancy, failing to advise of the risk of funding the loan under these circumstances, and failing to confirm that plaintiff contributed 3% of her own funds toward closing, a condition of the loan. The law firm, which did not submit an expert's opinion in opposition, failed to raise a triable issue.

Student note:  The motion court properly considered the affidavit of the bank's legal expert concerning the duty of care an attorney owes to a mortgage-lender client.  The bank's closer, who was responsible for ensuring that the closing documents were in order, clearly had knowledge of the facts, and, therefore, was qualified to submit an affidavit in support of the bank's summary judgment motion, pursuant to CPLR 3212[b]. The closer's lack of knowledge concerning the underwriting process is irrelevant to the claim.

Case:  Benitez v. United Homes of N.Y., LLC, NY Slip Op 06153 (1st Dep't September 27, 2016)

Here is the decision.

Tomorrow's issue: A claim for injuries allegedly sustained while conducting a repair work estimate.