The law of waiver and estoppel.

Practice point: Once a contract is formed, the parties may change their agreement by another agreement, by course of performance, or by conduct amounting to a waiver or estoppel.  So, contractual rights may be waived if they are knowingly, voluntarily and intentionally abandoned, and abandonment may be established by affirmative conduct or by failure to act so as to evince an intent not to claim a purported advantage.

As the intentional relinquishment of a known right, a waiver is not lightly presumed, and mere negligence, oversight or thoughtlessness does not create a waiver. Similarly, a party's reluctance to terminate a contract upon a breach and its attempts to encourage the breaching party to adhere to its obligations under the contract do not necessarily constitute a waiver of the innocent party's rights in the future.

However, a waiver may be proved by undisputed acts or language so inconsistent with the party's purpose to stand upon his or her rights as to leave no opportunity for a reasonable inference to the contrary.

Case:  Kamco Supply Corp. v. On the Right Track, LLC, NY Slip Op 02025 (2d Dep't March 22, 2017)

Here is the decision.

Tomorrow's issue:  Family Ct Act § 437-a.

Summary judgment and discovery.

Practice point:  The motion will not be defeated when the nonmovant offers only speculation that further discovery may yield evidence that raises a triable issue.

Case:  Stein v. City of New York, NY Slip Op 02131 (1st Dep't March 23, 2017)

Here is the decision.

Tomorrow's issue:  The law of waiver and estoppel.

An appeal from an intermediate order.

Practice point:  The right of direct appeal from an intermediate order is terminated with the entry of judgment in the action.

Case: Qin Jun Ying v. May Flower Intl., Inc., NY Slip Op 01899 (2d Dep't March 15, 2017)

Here is the decision.

Tomorrow's issue:  Summary judgment and discovery.

Notice in an eviction proeeding.

Practice point:   Compliance with a statutory notice requirement is a condition precedent to maintaining a summary eviction proceeding, and the landlord has the burden to prove that element of its case.  A tenant may timely raised the objection in the answer and again in across motion for summary judgment despite not having raised it in the preanswer motion, pursuant to CPLR 3211[e].

Case:  Mautner-Glick Corp. v. Glazer, NY Slip Op 01963 (1st Dep't March 16, 2017)

Here is the decision.

Monday's issue:  An appeal from an intermediate order.

A claim of conspiracy to commit a tort.

Practice point:  The conspiracy to commit a tort is not, of itself, a cause of action, and such an action is time-barred when the substantive tort underlying it is time-barred.

Case:  Loren v. Church St. Apt. Corp., NY Slip Op 01964 (1st Dep't March 16, 2017)

Here is the decision.

Tomorrow's issue: Notice in an eviction proceeding.

Snow, ice, and an out-of-possession landlord's liability.

Practice point:  Snow or ice is not a significant structural or design defect for which an out-of-possession landlord may be held liable.

Case:  Cepeda v. KRF Realty LLC, NY Slip Op 01961 (1st Dep't March 16, 2017)

Here is the decision.

Tomorrow's issue:  A claim of conspiracy to commit a tort.

The improper entry of a clerk's judgment

Practice point:  A clerk does not have authority to enter a clerk's judgment against a defendant pursuant CPLR 3215(a) if the plaintiff's causes of action are not for a sum certain.

Case:  Primary Care Ambulance Corp. v. Simpson, NY Slip Op 01898 (2d Dep't March 15, 2017)

Here is the decision.

Tomorrow's issue:  Snow, ice, and an out-of-possession landlord's liability.

A fall down the stairs.

The Appellate Division affirmed the denial of defendants' summary judgment motion in this action where plaintiff was injured when she fell while ascending the stairs in defendants' restaurant. Plaintiff testified that as she attempted to move her foot to the next step, it came in contact with the front lip of the second step. Contrary to defendants' assertion, plaintiff also testified that she had to bend down to grab the handrail, which was low. This evidence, as well as the affidavit of plaintiffs' expert engineer, who opined that the low positioning of the handrails and the higher position of the step risers were in violation of various New York City Building Codes, sufficiently raised triable issues as to whether the riser height of the stairs and low handrail were proximate causes of plaintiff's injuries.

Case:  Murray v. Villa Barone Ristorante, Inc., NY Slip Op 01783 (1st Dep't March 9, 2017)

Here is the decision.

Tomorrow's issue:  The improper entry of a clerk's judgment.

A claim of discrimination based on national origin.

The Appellate Division affirmed dismissal of this claim in which plaintiff alleged that the City agency failed to select him for two promotions and paid him less than it paid a peer of a different national origin.

Plaintiff established prima facie that he was passed over for promotion under circumstances raising an inference of discrimination. In response, defendants offered legitimate, nondiscriminatory reasons for promoting two employees who were not of plaintiff's origin. Agency decision-makers demonstrated that plaintiff limited his work to fulfilling the minimal requirements of his job; that he sometimes balked at assignments without good reason; and that he failed to meet all of his goals. Defendants further demonstrated that, in contrast, the promoted employees had done outstanding work in positions relevant to the two vacancies at issue.

Plaintiff failed to raise triable issues of fact as to whether defendants' proffered reasons for their decisions were pretextual or incomplete, given the absence of any evidence from which a reasonable jury could infer that his national origin played a role in defendants' passing him over for the promotions. Plaintiff admittedly never complained about the promotion process before commencing this action, and there is no indication that he raised any internal complaints of discrimination. Even if the promotions contravened Civil Service Rules and Regulations § 3.3(a) because the promoted individuals were provisional rather than permanent employees, this technical violation does not establish a discriminatory motive. Plaintiff's other claims that the promotions violated policies and regulations are unsupported. His testimony that the promoted employees were appointed based on friendship with the decision-makers is unavailing. The agency's failure to advertise the positions does not give rise to an inference of discrimination, but merely relieves a plaintiff of the burden to show that he applied for the position.

Plaintiff's deposition testimony recounting two occasions when one of the decision-makers allegedly shouted admonitions at him or another employee of plaintiff's national origin does not establish discrimination based on national origin.  Mere personality conflicts must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code.

Finally, plaintiff failed to make a prima facie showing in support of his claim that he was paid less than a peer of another national origin. Although both he and the other employee had the same civil service title, they were not similarly situated in light of the differences in their experience, the other employee's earlier salary, and their differing job responsibilities.

Case:  Uwoghiren v. City of New York, NY Slip Op 01782 (1st Dep't March 9, 2017)

Here is the decision.

Monday's issue:  A fall down the stairs.

Attorneys' fees in a matrimonial action.

Practice point:  In determining whether to award attorneys' fees, a court will review the financial circumstances of both parties, together with all of the other circumstances of the case, which may include the relative merit of the parties' positions. An award pursuant to Domestic Relations Law § 237(a) is warranted where there is a significant disparity in the financial circumstances of the parties.

Case:  Bagielto v. Kolsch, NY Slip Op 01666 (2d Dep't March 8, 2017)

Here is the decision.

Tomorrow's issue:  A claim of discrimination based on national origin.

September 11 and the presumption of causation.

Practice point:  As the legislature has not the extended the presumption of causation to all disabilities subsequently developed by responders to the September attacks, a Court must limit the presumption's applicability to the scope the legislature has provided for it.

Case:  Matter of Stavropoulos v. Bratton, NY Slip Op 01779 (1st Dep't March 9, 2017)

Here is the decision.

Tomorrow's issue: Attorneys' fees in a matrimonial action.