Tuesday, March 28, 2017

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.

Monday, March 27, 2017

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.

Friday, March 24, 2017

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.

Thursday, March 23, 2017

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.

Wednesday, March 22, 2017

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.

Tuesday, March 21, 2017

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.

Monday, March 20, 2017

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.