Indemnification.

Practice point: A party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified.

Student note: If there are no fact issues regarding the indemnitee's active negligence, the court may render a conditional judgment on the issue of indemnity, pending determination of the primary action, in order that the indemnitee may obtain the earliest possible determination as to the extent of reimbursement.

Case: Rodriguez v. Tribeca 105, LLC, NY Slip Op 01667 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Workers’ Compensation.

Qualified privilege.

Practice point: The defense is available on a defamation claim if the communications were made to persons who had some common interest in the subject matter.

Student note: The defense will be defeated by demonstrating that the defendant spoke with malice.

Case: Constantine v. Teachers Coll., NY Slip Op 01782 (1st Dept. 2012).

 Here is the decision.

Tomorrow’s issue: Indemnification.

Account stated.

Practice point: Plaintiff-law firm established entitlement to summary judgment by showing that its client received, retained without objection, and partially paid invoices without protest.

Student note: A prior order fixing the amount of plaintiff's charging lien on the proceeds of the settlement of the underlying lawsuit is not res judicata as to plaintiff's account stated claim if plaintiff did not have an opportunity to litigate that claim when the court awarded the charging lien.

Case: Scheichet & Davis, P.C. v. Nohavicka, NY Slip Op 01763 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Qualified privilege.

Bankruptcy petitions.

Practice point: The failure to schedule a legal claim as an asset in a bankruptcy proceeding deprives the debtor of standing to raise it in a subsequent legal action.

Student note: Neither ignorance of the law nor inadvertent mistake excuses a plaintiff's failure to list such a claim as a potential asset in the petition.

Case: Hutchinson v. Chana Weller, DDS, PLLC, NY Slip Op 01875 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Account stated.

Vehicle owner's liability.

Practice point:  Vehicle and Traffic Law § 388(1) provides that, with the exception of bona fide commercial lessors of motor vehicles, which are exempt from vicarious liability by virtue of federal law, pursuant to 49 USC § 30106, the owner of a motor vehicle is liable for the negligence of one who operates the vehicle with the owner's express or implied consent.

Student note: This statute creates a presumption that the driver was using the vehicle with the owner's express or implied permission, which only may be rebutted by substantial evidence sufficient to show that the vehicle was not operated with the owner's consent. Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use.

Case: Vyrtle Trucking Corp. v. Browne, NY Slip Op 01811 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Bankruptcy petitions.

Defaults.

Practice point: Under CPLR 5015(a)(4), a default must be vacated once a movant demonstrates lack of personal jurisdiction.

Student note: A party who moves to vacate a judgment entered on default is relieved of any obligation to demonstrate a reasonable excuse for the default and a potentially meritorious defense when lack of personal jurisdiction is asserted as the ground for vacatur.

Case: Toyota Motor Credit Corp. v. Lam, NY Slip Op 01809 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Vehicle owner’s liability.

Tenants-in-common.

Practice point: The presumption that tenants-in-common share equally in their common tenancy may be rebutted if the facts show that they hold the tenancy in unequal shares. A court acting in equity may take into account the amounts invested in the property by the respective tenants in determining the shares to which they are entitled.

Student note: In making this determination, the court must consider the various equities, including the nature of the parties' relationship, and whether any or all of these contributions were repaid or intended to be a gift.

Case: McGuire v. McGuire, NY Slip Op 01802 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Defaults.

Adverse possession.

Practice point: A party seeking to obtain title must prove by clear and convincing evidence the following common-law requirements: that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4) it was exclusive; and (5) it was continuous for the statutory period of 10 years.

Student note: Hostile possession does not require a showing of enmity or specific acts of hostility. All that is required is a showing that the possession constitutes an actual invasion of or infringement upon the owner's rights. Consequently, hostility may be found even though the possession occurred inadvertently or by mistake.

Case: Kelly v. Bastianic, NY Slip Op 01798 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Tenants-in-common.

Collateral estoppel.

Practice point: The doctrine bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues raised in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling.

Student note: A decision upon which no formal order or judgment has been entered lacks the conclusive character necessary to invoke the doctrine.

Case: Egbert Sq. Realty, LLC v. 112-114 Corp., NY Slip Op 01794 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Adverse possession.

Primary assumption of risk.

Practice point: 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.

Student note: This includes risks associated with the condition of the surface on which the activity is performed, and any open and obvious condition thereon. If the risks are known by or perfectly obvious to the participant, he or she is deemed to have consented to them, and the property owner has discharged its duty of care by making the conditions as safe as they appear to be.

Case: Nigro v. New York Racing Assn., Inc., NY Slip Op 01660 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Collateral estoppel

Legal malpractice.

Practice point: The plaintiff must establish that the defendant-attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.

Student note: To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action, or would not have incurred any damages, but for the attorney's negligence.

Case: Island Props. & Equities, LLC v. Cox, NY Slip Op 01656 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Primary assumption of risk.