A conditional order of preclusion.

Practice point:  A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order.  If the party fails to produce the discovery by the specified date, the conditional order becomes absolute.

Student note:  To be relieved of the adverse impact of the conditional order, a party is required to demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious defense.

Case:  Naiman v. Fair Trade Acquisition Corp., NY Slip Op 05830 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  Stipulations of settlement and judgments of divorce.

The doctrine of primary assumption of the risk.

Practice point:  Under the doctrine, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and which flow from such participation.

Student note:  This includes risks associated with the construction of the playing surface and any open and obvious condition on it.

Case:  MacIsaac v. Nassau County, NY Slip Op 05814 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  A conditional order of preclusion.

A co-owner's mortgage of a property.

Practice point:  A mortgage given by one of several parties with an interest in the mortgaged property is valid, but it gives the mortgagee security only up to the interest of the mortgagor,

Student note:  Under New York law, a co-owner may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other.

Case:  John T. Walsh Enters., LLC v. Jordan, NY Slip Op 05813 (2d Dep't July 26, 2017)

Here is the decision.

Monday's issue:  The doctrine of primary assumption of the risk.

Open-court stipulations.

Practice point:  As with any contract, the stipulation will be enforced so long as it is sufficiently definite in its material terms so as to enable a court to determine exactly what the parties have agreed to.

Student note:  Open-court stipulations are judicially favored, and will not be set aside absent fraud, overreaching, mistake, duress, or unconscionability.

 Case:  Clement v. Millbrook Cent. Sch. Dist., NY Slip Op 05806 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  A co-owner's mortgage of a property.

An account stated.

Practice point:  An essential element of an account stated is that the parties came to an agreement with respect to the amount due.

 Student note:  An account stated is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them which is independent of the original obligation.

Case:  Caring Professionals, Inc. v. Landa, NY Slip Op 05803 (2d Dep't July 26 2017)

Here is the decision.

Tomorrow's issue:  Open-court stipulations.

A court's vacating a note of issue.

Practice point:  On its own motion, a court may, at any time, vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect or that the certificate of readiness fails to comply with the requirements of 22 NYCRR 202.21.

Case:  Bundhoo v. Wendy's, NY Slip Op 05802 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  An account stated.

A landowner's liability for injuries during storms.

Practice point:  The landowner is not liable for injuries sustained as the result of slippery conditions during the storm, or for a reasonable time thereafter.  However, if the landowner engages in snow removal, it must act with reasonable care to avoid creating a hazardous condition or making the bad situation worse.

Case:  Balan v. Rooney, NY Slip Op 05801 (2d Dep't July 26, 2017)  

Here is the decision. 

Tomorrow's issue:  A court's vacating a note of issue.

A cause of action sounding in negligence.

The elements of the cause of action are (1) a duty owed by the defendant to the plaintiff; (2) the defendant's breach of that duty; and (3) injury proximately resulting from the defendant's breach.

Practice point:  The existence and scope of a duty of care is a question of law for the courts to decide.

Case:  Abbott v. Johnson, NY Slip Op 05800 (2d Dep't July 26, 2017)

Here is the decision.

Monday's issue:  A landowner's liability for injuries during storms.

The public's right to access to the courts.

Practice point:  While public policy mandates free access to the courts, a party may forfeit that right if she or he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will.

Case:  Pavic v. Djokic, NY Slip Op 05735 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  A cause of action sounding in negligence.

The continuing wrong doctrine.

Practice point:  Where there is a series of continuing wrongs, the doctrine tolls the limitation period until the date of the commission of the last wrongful act.

Case:  Palmeri v. Wilkie Farr & Gallagher LLP, NY Slip Op 05794 (1st Dep't July 25, 2017)

Here is the decision.

Tomorrow's issue:  The public's right to access to the courts.

Contract interpretation.

Practice point:  The objective in interpreting a contract is to determine the parties' intent from the language they used and to fulfill their reasonable expectations.  The court's role is to enforce the parties' agreement made by the parties, not to add, excise or distort the meaning of the terms they chose to include, thereby creating a new contract under the guise of construction. 

Student note:  Although words are generally afforded their ordinary meaning, technical words are to be given their generally accepted technical meaning, and interpreted as usually understood by the persons in the profession or business to which they relate.

Case:  Landmark Ventures, Inc. v. H5 Tech., Inc., NY Slip Op 05713 (2d Dep't July 19, 2017)

Here is the decision. 

Tomorrow's issue:  The continuing wrong doctrine.