Monday, October 31, 2011


Practice point: A court will not read into the contract an indemnity obligation that is not unmistakably present.

Student note: If the purported indemnification provision is at all ambiguous, summary judgment will be denied.

Case: Lopez v. Guei Shun Shiau, NY Slip Op 07500 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Summary judgment.

Friday, October 28, 2011

Default judgments.

Practice point: Pursuant to CPLR 3215(c), if a plaintiff fails to seek entry of a judgment within one year after default, the court shall dismiss the complaint as abandoned, absent a showing of sufficient cause why it should not be dismissed.

Student note: The showing must include a viable excuse for the delay, and a demonstrably meritorious cause of action.

Case: Utak v. Commerce Bank Inc., NY Slip Op 07261 (1st Dept. 2011).

Here is the decision.

Monday’s issue: Contracts.

Thursday, October 27, 2011

Labor Law.

Practice point: The touchstone of any § 240(1) claim is whether the harm flows directly from the application of the force of gravity.

Student note:  A worker may recover under the statute even if he did not actually fall, or if he was injured while preventing himself from falling.

Case: Reavely v. Yonkers Raceway Programs, Inc., NY Slip Op 07366 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Default judgments.

Wednesday, October 26, 2011


Practice point: A court is without power to render a judgment against a party over whom the court lacks jurisdiction.

Student note: A judgment rendered without jurisdiction is void, and when a deed is issued in execution upon such a void judgment, that deed is similarly void.

Case: U.S. Bank, N.A. v. Bernhardt, NY Slip Op 07415 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Labor Law.

Tuesday, October 25, 2011

Promissory notes.

Practice point: A cause of action to recover on a note which is payable on demand accrues at the time of its execution, while on a note which is payable in full at one time, it accrues at the time it becomes due. On a note payable in installments, there are separate causes of action for each installment accrued, and the statute of limitations begins to run on the date each installment becomes due and is defaulted upon, unless the debt is accelerated.

Student note: The statute of limitations is six years, pursuant to CPLR 213[2].

Case: Morrison v. Zaglool, NY Slip Op 07401 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Jurisdiction.

Monday, October 24, 2011

Custody Agreements.

Practice point: Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child.

Student note:  The court should consider whether the alleged changed circumstances indicate one of the parties is unfit, the nature and quality of the relationships between the child and the parties, and the existence of a prior agreement.

Case: Matter of Chery v. Richardson, NY Slip Op 07215 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Promissory notes.

Friday, October 21, 2011

Requesting an admission.

Practice point: Pursuant to CPLR 3123, a party may serve upon any other party a written request for an admission of the truth of any facts which the requesting party reasonably believes cannot be disputed at trial and which are within the knowledge of the other party or can be ascertained upon reasonable inquiry.

Student note: If the requested admission is not denied within twenty days after service, the requested admission will be deemed admitted.

Case: Nacherlilla v. Prospect Park Alliance, Inc., NY Slip Op 07205 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Custody agreements.

Thursday, October 20, 2011

Deposition transcripts.

Practice point: Pursuant to CPLR 3116(a), the transcript of the deposition of a deponent must be provided to the deponent for review and signature, and any changes in form or substance desired by the deponent shall be recorded.

Student note: If a deponent refuses or fails to sign the deposition under oath within 60 days, it may be used as if fully signed.

Case: Franzese v. Tanger Factory Outlet Ctrs., Inc., NY Slip Op 07200 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Requesting an admission.

Wednesday, October 19, 2011

Burglar alarms.

Practice point: A burglar alarm agreement which contains an exculpatory clause shields the burglar alarm company from liability only for ordinary negligence, not for gross negligence.

Student note:  Used in this context, gross negligence is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing.

Case: Chan v. Counterforce Cent. Alarm Servs. Corp., NY Slip Op 07197 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Deposition transcripts.

Tuesday, October 18, 2011

Motions to dismiss.

Practice point: On a motion to dismiss, pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired.

Student note: The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

Case: Baptiste v. Harding-Marin, NY Slip Op 07193 (2d Dept. 2011).

Tomorrow’s issue: Burglar alarms.

Monday, October 17, 2011

Labor Law.

Practice point: Where a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a landowner may be liable under § 200 if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition.

Student note: To provide constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it.

Case: Schick v. 200 Blydenburgh, LLC, NY Slip Op 07025 (2d Dept. 2011).

Tomorrow’s issue: Motions to dismiss.

Friday, October 14, 2011

Default judgments.

Practice point: A defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action to avoid the entering of a default judgment or to extend the time to answer.

Student note:  Defendants’ contention that their insurance company delayed in informing them that it would not defend them is an insufficient excuse for their default.

Case: Integon Natl. Ins. Co. v. Noterile, NY Slip Op 07005 (2d Dept. 2011).

Monday’s issue: Labor Law.

Thursday, October 13, 2011

Foreclosure actions.

Practice point: In order to commence the action, a plaintiff must have a legal or equitable interest in the mortgage. A plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced.

Student note: An assignment of a mortgage without assignment of the underlying note or bond is a nullity, and no interest is acquired thereby.

Case: Deutsche Bank Natl. Trust Co. v. Barnett, NY Slip Op 06995 (2d Dept. 2011).

Tomorrow’s issue: Default judgments.

Wednesday, October 12, 2011

Right to a jury trial.

Practice point: The deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial.

Student note: Once the right has been so lost, it will not be revived by any subsequent dismissal, settlement or withdrawal of the equitable claims.

Case: Bryant v. Broadcast Music, Inc., NY Slip 06991 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Foreclosure actions.

Tuesday, October 11, 2011

Piercing the corporate veil.

Practice point: A plaintiff must show that complete domination was exercised over a corporation with respect to the transaction attacked, and that such domination was used to commit a fraud or wrong against the plaintiff, resulting in plaintiff’s injury.

Student note:  The corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator's business instead of its own and can be called the other's alter ego.

Case: Campone v. Pisciotta Servrs., Inc., NY Slip Op 06819 (2d Dept. 2011).

Tomorrow’s issue: Right to a jury trial.

Monday, October 10, 2011

Court holiday.

The courts are closed today and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue: Piercing the corporate veil.

Friday, October 7, 2011

Declaratory judgments.

Practice point: On a motion to dismiss a declaratory judgment action prior to service of an answer, the only issue is whether a cause of action for declaratory relief is set forth, not whether the plaintiff is entitled to a favorable declaration.

Student note: A court may reach the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where no questions of fact are presented. The motion will be taken as one for a declaration in the defendant's favor.

Case: Tilcon v. Town of Poughkeepsie, NY Slip Op 06849 (2d Dept. 2011).

Here is the decision.

Tuesday’s issue:Piercing the corporate veil.

Thursday, October 6, 2011

Appealable papers.

Practice point: The fact that an order appealed from contains language or reasoning that a party deems adverse to its interests does not furnish a basis for standing to take an appeal.

Student note: Despite the dicta that the plaintiffs deem contrary to their interests, they are not aggrieved thereby and, therefore, may not challenge that portion of the order. 

Case: Blum v. Valentine, NY Slip Op 06817 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Declaratory judgments.

Wednesday, October 5, 2011

Bus injuries.

Practice point: To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was unusual and violent.

Student note:  The plaintiff's proof must consist of more than a mere characterization of the stop in those terms by the plaintiff.

Case: Black v. County of Dutchess, NY Slip Op 06816 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue:  Appealable papers.

Tuesday, October 4, 2011

Sidewalk defects.

Practice point: Prior written notice of the defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City, pursuant to Administrative Code of City of NY § 7-201[c][2].

Student note: Big Apple maps are independent records and the notice must be traced to the map that is closest in time to the date a defect is alleged to have caused an accident.

Case: Adamson v. City of New York, NY Slip Op 06812 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue: Bus injuries.

Monday, October 3, 2011

Parental rights.

Practice point: The petitioner established that the mother abandoned the child by failing to visit or maintain contact with the child for six months prior to the filing of the petition to terminate her parental rights, pursuant to Social Services Law § 384-b.

Student note:  The fact that the mother maintained communication with the petitioner regarding her other children, whom she continued to visit, did not negate the petitioner's showing that the mother intended to forgo her parental rights and obligations with respect to the child in question.

Case: Matter of Amaru M. v. Kizwana M., NY Slip Op 06561 (2d Dept. 2011).

Tomorrow’s issue: Sidewalk defects.