Monday, October 31, 2016

A defective roadway condition.

Practice point:  The Appellate Division affirmed dismissal of the complaint alleging that a defective roadway condition caused plaintiff's bicycle accident. Plaintiff's submission of an inspection report was insufficient to show that the City had issued written acknowledgment of the defect within the meaning of Administrative Code § 7-201(c)(2), since the report identifies a defect at a different location. Awareness of one defect in the area does not constitute notice of a different particular defect which caused the accident. In addition, it was speculative for plaintiff's expert to assume that, because no permits had been issued, the City must have created the roadway defect.

Case:  Ragolia v. City of New York, NY Slip Op 06950 (1st Dep't October 25, 2016)

Here is the decision.

Tomorrow's issue:  Labor Law §§ 240(1) and  241(6).

Friday, October 28, 2016

Disqualification of an attorney as an advocate-witness.

Practice point:  The Appellate Division affirmed the disqualification where the attorney was likely to be called as a witness on significant issues of fact regarding his conduct with respect to the money that he is holding in escrow.

Student note:  Pursuant to 22 NYCRR 1200.0) rule 3.7, an attorney shall not act as an advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact. The rule is intended to provide guidance, but is not binding authority, in deciding a motion to disqualify.

Case:  Bajohr v. Berg, NY Slip Op 06797 (2d Dep't October 19, 2016)

Here is the decision.

Monday's issue: A defective roadway condition.

Thursday, October 27, 2016

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.

Wednesday, October 26, 2016

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.

Tuesday, October 25, 2016

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.

Monday, October 24, 2016

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.

Friday, October 21, 2016

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.

Thursday, October 20, 2016

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.

Wednesday, October 19, 2016

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.

Tuesday, October 18, 2016

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.

Monday, October 17, 2016

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.

Friday, October 14, 2016

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,

Thursday, October 13, 2016

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.

Wednesday, October 12, 2016

Real Property Law and enforcing restrictive covenants.

Practice point:  Pursuant to RPAPL 1951(1),  the covenant will not be enforced if, at the time enforceability of the restriction is brought into question, it seems that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability.

Student note:  The party seeking relief from the covenant bears the burden of proof.

Case:  Blue Is. Dev., LLC v. Town of Hempstead, NY Slip Op 06465 (2d Dep't October 5, 2016)

Here is the decision.

Tomorrow's issue:  A stipulation of settlement in a divorce action.

Tuesday, October 11, 2016

A posttrial motion to set aside the verdict.

Practice point:  The Order granting plaintiff's posttrial motion to set aside the verdict was reversed, on the law and the facts, the jury verdict was reinstated, and the complaint was dismissed.

Plaintiff had presented to defendant-dentists, and then, two years later, a tumor was discovered in the lower left side of plaintiff's mouth. Plaintiff alleges that the tumor should have been detected on the bitewing x-ray taken at defendants' office two years earlier.

At trial, the jury was presented with conflicting evidence as to whether there were sufficient grounds to investigate and take further x-rays. It was further asked to determine the credibility of the defense expert, who plaintiff's trial counsel asserted lied about the issues in the case. The jury's verdict implicitly rejected that contention, and resolved the conflicting testimony in defendants' favor.  In the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict, with particular deference given to jury verdicts in favor of defendants in tort cases.

Student note:  The verdict was based on a fair interpretation of the evidence and should not have been disturbed.

Case:  Cordero v. Young, NY Slip Op 06543 (1st Dep't October 6, 2016)

Here is the decision.

Tomorrow's issue:  Real Property Law and enforcing restrictive covenants.

Monday, October 10, 2016

Court holiday.

Tomorrow's issue:  A posttrial motion to set aside the verdict.

Friday, October 7, 2016

Wheel stops and the risk of harm.

Practice point:  While a property owner has a duty to maintain its premises in a reasonably safe manner for its patrons, there is no duty to protect or warn against an open and obvious condition which is not inherently dangerous.  A wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm.

Case:  Lacerra v. CVS Pharmacy, NY Slip Op 06474 (2d Dep't October 5 2016)

Here is the decision.

Tuesday's issue: A posttrial motion to set aside the verdict.

Thursday, October 6, 2016

A trivial defect is nonactionable.

Practice point:  The height differential between the marble step and the bull-nosing on which plaintiff caught her heel, causing her to fall, was one-eighth to one-quarter of an inch. This defect, as a matter of law, did not constitute a trap or nuisance, nor were the intrinsic characteristics or the surrounding circumstances such that they magnified the danger posed by this otherwise insignificant defect. So, this defect was trivial as a matter of law, and, as a result, nonactionable.

Case:  Atkinson v. Key Real Estate Assoc., LLC, NY Slip Op 06160 (1st Dep't September 27, 2016)

Here is the decision.

Tomorrow's issue:  Wheel stops and the risk of harm.

Wednesday, October 5, 2016

Prima facie tort.

Practice point:  The elements of a cause of action alleging prima facie tort are: (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or a series of acts which would otherwise be lawful. To make out a claim sounding in prima facie tort, a plaintiff must have suffered specific and measurable loss, which requires an allegation of special damages, that is, the loss of something having economic or pecuniary value.

Student note:  Prima facie tort provides a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy. It does not to provide a catch-all alternative for every cause of action which cannot stand on its own.

Case:  Berland v.. Chi, NY Slip Op 06188 (2d Dep't September 28, 2016)

Here is the decision.

Tomorrow's issue: A trivial defect is nonactionable.

Tuesday, October 4, 2016

A claim for injuries allegedly sustained while conducting a repair work estimate.

Practice point:  The Appellate Division reversed the order dismissing the complaint in this action where plaintiff had gone to defendant's property to prepare an estimate to repair the back porch. While plaintiff was standing on the porch, it collapsed and plaintiff was injured.

Student note:  Since the defendant failed to establish prima facie entitlement to judgment as a matter of law, it is not necessary for the court to review the sufficiency of plaintiff's opposition papers.

Case:  Arcabascio v. Bentivegna, NY Slip Op 06187 (2d Dep't September 28, 2016)

Here is the decision.

Tomorrow's issue: Prima facie tort.

Monday, October 3, 2016

Summary judgment on a legal malpractice claim.

Practice point:  The Appellate Division affirmed denial of defendant law firm's motion to dismiss. The bank made a prima facie showing that the law firm departed from the standard of care in connection with the closing of a residential real estate mortgage loan to plaintiff by failing to advise that the property lacked a certificate of occupancy, failing to advise of the risk of funding the loan under these circumstances, and failing to confirm that plaintiff contributed 3% of her own funds toward closing, a condition of the loan. The law firm, which did not submit an expert's opinion in opposition, failed to raise a triable issue.

Student note:  The motion court properly considered the affidavit of the bank's legal expert concerning the duty of care an attorney owes to a mortgage-lender client.  The bank's closer, who was responsible for ensuring that the closing documents were in order, clearly had knowledge of the facts, and, therefore, was qualified to submit an affidavit in support of the bank's summary judgment motion, pursuant to CPLR 3212[b]. The closer's lack of knowledge concerning the underwriting process is irrelevant to the claim.

Case:  Benitez v. United Homes of N.Y., LLC, NY Slip Op 06153 (1st Dep't September 27, 2016)

Here is the decision.

Tomorrow's issue: A claim for injuries allegedly sustained while conducting a repair work estimate.