Vacatur in the interest of substantial justice.

Practice point:  The Appellate Division affirmed that, even though the default was unexplained, the motion court providently exercised its discretion in granting vacatur in the interest of substantial justice. The relief was justified by defendants' payment of substantially all of the amount due just two months after the order and judgment they sought to vacate. In addition, plaintiffs do not claim prejudice.

Case:  Marbru Assoc. v. White, NY Slip Op 06864 (1st Dep't October 20, 2016)

Here is the decision.

Tomorrow's issue: Disqualification of an attorney as an advocate-witness.

Service of a notice of claim by regular mail.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss for failure to serve a proper notice of claim. The notice was served by regular mail on the Transit Authority within 90 days after the claim arose, and the Transit Authority requested a 50-h hearing.  While service was noncompliant with statutory provisions, the notice was valid because it was served within the statutory period and the public corporation demanded an examination of the claimant.

Case:  Lapsley-Cockett v. Metropolitan Tr. Auth., NY Slip Op 06861 (1st Dep't October 20, 2016)

Here is the decision.

Tomorrow's issue:  Vacatur in the interest of substantial justice.

Jurisdiction over foreign corporations.

Practice point:  Pursuant to CPLR 301, the corporation is amenable to suit in New York courts if it has engaged in such a continuous and systematic course of doing business here that a finding of its presence in New York is warranted.  The exercise of jurisdiction over a foreign corporation on the basis of state law must comport with the due process requirement that the corporation's affiliations with New York are so constant and pervasive as to render it essentially at home here.

CPLR 302(a)(1) grants New York courts jurisdiction over nondomiciliaries when the action arises out of the nondomiciliaries' transaction of any business in New York.  In deciding jurisdiction under the statute, the court will determine (1) whether the defendant transacted business in New York and, if so, (2) whether the cause of action asserted arose from that transaction. In order to satisfy the second prong, there must be an articulable nexus or a substantial relationship between the defendant's New York activity and the alleged cause of action.

Case:  Fernandez v. DaimlerChrysler, A.G., NY Slip Op 06679 (2d Dep't October 12, 2016)

Here is the decision.

Tomorrow's issue:  Service of a notice of claim by regular mail.

An elevator company's duty of care.

Practice point:  If the company agrees to maintain the elevator in safe operating condition, it may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition that it should have found. In addition, a party who enters into a contract to render services may be said to have assumed a duty of care, and, where the contracting party has entirely displaced the other party's duty of safe maintenance, may be liable in tort to third persons.

Case:  Fajardo v. Mainco El. & Elec. Corp., NY Slip Op 06678 (2d Dep't October 12, 2016)

Here is the decision.

Tomorrow's issue: Jurisdiction over foreign corporations.

The correct standard on a summary judgment motion.

Practice point:  The Appellate Division affirmed that the motion court had applied the correct standard in denying defendant's motion, as defendant merely pointed to perceived gaps in plaintiff's proof, rather than submitting evidence showing why plaintiff's claims fail.

Case:  Ricci v. A.O. Smith Water Prods. Co., NY Slip Op 06741 (1st Dep't October 13, 2016)

Here is the decision.

Monday's issue:  An elevator company's duty of care.

An untimely summary judgment motion.

Practice point:  The Appellate Division reversed the granting of defendants' motion for summary judgment dismissing plaintiff's cause of action for third-party promissory estoppel. The motion court's rules required dispositive motions to be filed within 60 days of the filing of a note of issue. Defendant filed the motion papers nine days after the time to do so had expired, rendering the motion untimely, pursuant to CPLR 3212[a].

Case:  Cullity v. Posner, NY Slip Op 06738 (1st Dep't October 13, 2016)

Here is the decision.

Tomorrow's issue:  The correct standard on a summary judgment motion.

A promise to answer for another's debt.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action to recover on a personal guaranty. A promise to answer for another's debt must be in writing and signed by the party to be charged, pursuant to General Obligations Law § 5-701[a][2].  Here, as the authenticity of defendant's signature was disputed and plaintiff sought to establish its authenticity through lay witness testimony, plaintiff was required to demonstrate that the witness personally observed the execution of the guaranty, or was so familiar with defendant's signature that he could readily recognize the signature as authentic. Plaintiff offered no such evidence, and did not establish that the signature was notarized or accompanied by a certificate of acknowledgment, pursuant to CPLR 4538.

Case:  A. F. Supply Corp. v. Perfect Lock & Sec., Inc., NY Slip Op 06672 (2d Dep't October 12, 2016)

Here is the decision.

Tomorrow's issue:  An untimely summary judgment motion.

Dismissal of a claim based on a fall on the stairs.

Practice point:  The Appellate Division affirmed the granting of defendants' motion for summary judgment dismissing the complaint. Defendants established prima facie that they did not cause or create the defect in the stairs that allegedly caused plaintiff to fall, and that they had no actual or constructive notice of any defect. They submitted evidence that the stairs were built in 1927 and had never been worked on thereafter, that there were no earlier reported incidents or complaints, and that no violations or citations had been issued with respect to the condition of the stairs. They also submitted their testimony that they used the stairs regularly, that no one had ever before fallen on the stairs, and that immediately after the accident they could find no defect.

In opposition, plaintiffs failed to raise an issue of fact. As to the issue of notice, the motion court was not required to consider their unsworn witness statement since the statement was the only evidence submitted on that issue. In any event, the unsworn statement is not probative of whether defendants had notice of the alleged defect.

Plaintiffs' expert's affidavit is not evidence that the stairs were out of compliance with commonly accepted safety standards or practices, as the expert did not refer to any specific safety standards or practices. Neither did the expert say that the absence of a handrail or the differential in the dimensions of the risers and treads made the stairs inherently dangerous.

Case:  Lovell v. Thompson, NY Slip Op 06736 (1st Dep't October 13, 2016)

Here is the decision.

Tomorrow's issue:  A promise to answer for another's debt.

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.