Wednesday, February 29, 2012

Usury as an affirmative defense.

Practice point: A corporation is prohibited from asserting the defense of civil usury, pursuant to General Obligations Law § 5-521, and an individual guarantor of a corporate obligation is also precluded from raising such a defense.

Student note: The threshold rate for civil usery is 16% per annum, pursuant to General Obligations Law § 5-501[1], [2]; Banking Law § 14-a[1].

Case: Arbuzova v. Skalet, NY Slip Op 01418 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motions for leave to renew.

Tuesday, February 28, 2012

Restoring a case marked off the trial calendar.

Practice point: A case in the Supreme Court marked off or struck from the trial calendar and not restored within one year thereafter is deemed abandoned and will be dismissed for neglect to prosecute, pursuant to CPLR 3404.

Student note: A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked off must demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant All four components of the test must be satisfied before the dismissal will be vacated and the action restored.

Case: Agli v. O’Connor, NY Slip Op 01417 (2d Dept. 2012).

Tomorrow’s issue: Usury as an affirmative defense.

Monday, February 27, 2012

Pleading with particularity.

Practice point: In an action resulting from the performing of labor or services, CPLR 3016(f) permits a plaintiff to set forth and number in the verified complaint the items of the claim and the reasonable value or agreed price of each. When the plaintiff properly complies with the statutory provisions, the defendant may not generally deny the allegations of the complaint but must specifically dispute the items on the plaintiff's list.

Student note: To meet the requirements of CPLR 3016(f), the complaint must contain a listing of the goods or services provided, with enough detail that it may readily be examined and its correctness tested entry by entry.

Case: Raytone Plumbing Specialties, Inc. v. Sano Constr. Corp., NY Slip Op 01442 (2d Dept. 2012).

Tomorrow’s issue: Restoring a case marked off the trial calendar.

Friday, February 24, 2012


Practice point: Depositions of parties to an action are generally held in the county where the action is pending.

Student note:  If a party demonstrates that conducting his deposition in that county would cause undue hardship, the Supreme Court, in its exercise of discretion, can order the deposition to be held elsewhere.

Case: Weinstein v. Gindi, NY Slip Op 01175 (1st Dept. 2012).

Monday’s issue: Pleading with particularity.

Thursday, February 23, 2012

Law of the case.

Practice point: An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court, and forecloses a re-examination of the question, absent a showing of subsequent evidence or a change of law.

Student note: Under the doctrine, parties are precluded from relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue.

Case: Carmona v. Mathisson, NY Slip Op 01105 (1st Dept. 2012).

Tomorrow’s issue:  Depositions.

Wednesday, February 22, 2012

Tort liability to a third party.

Practice point: A contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.

Student note: There is an exception where a contractor who undertakes to perform services pursuant to a contract negligently creates or exacerbates a dangerous condition by launching its own force or instrument of harm.

Case: Kramer v. Cury, NY Slip Op 00913 (1st Dept. 2012).

Tomorrow’s issue: Law of the case..

Tuesday, February 21, 2012

Labor Law.

Practice point: While § 240(1) is not limited to work performed on actual construction sites, the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.

Student note: Within the meaning of § 240(1), ‘altering’ requires making a significant physical change to the configuration or composition of the building or structure.

Case: Panico v. Advanstar Communications, Inc., NY Slip Op 00944 (2d Dept. 2012).

Tomorrow’s issue:  Tort liability to a third party.

Monday, February 20, 2012

Court holiday.

The courts are closed today to mark Washington’s Birthday.

Tomorrow’s issue: Labor Law.

Friday, February 17, 2012

Affirmative acts of negligence.

Practice point: A defendant may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk.

Student note: Speculation and surmise are insufficient to defeat a motion for summary judgment.

Case: Jeansimon v. Lumsden, NY Slip Op 00931 (2d Dept. 2012).

Tuesday’s issue:  Labor Law.

Thursday, February 16, 2012


Practice point: Pursuant to N-PCL 1510(e), the consent of the cemetery corporation, the owners of the lot, and a decedent's surviving spouse, adult children, and parents is required before a body may be disinterred.

Student note: In the absence of consent, a court may grant a motion to disinter upon a showing of good and substantial reasons. The paramount factor a court must consider is the known desires of the decedent, but the court must also consider the desires of the decedent's next of kin.

Case: Brandenburg v. St. Michael’s Cemetery, NY Slip Op 00923 (2d Dept. 2012).

Tomorrow’s issue: Affirmative acts of negligence.

Wednesday, February 15, 2012


Practice point: CPLR 1013 provides that a court has discretion to permit a person to intervene when the person's claim or defense and the main action have a common question of law or fact.

Student note: In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action, or prejudice the substantial rights of any party.

Case: American Home Mtge. Servicing, Inc. v. Sharrocks, NY Slip Op 00918 (2d Dept. 2012).

Tomorrow’s issue: Disinternment.

Tuesday, February 14, 2012


Practice point: To establish the cause of action, a plaintiff must show (1) legal ownership or an immediate superior right of possession to a specific identifiable thing, and (2) that the defendant exercised an unauthorized dominion over the thing to the exclusion of the plaintiff's rights.

Student note: Tangible personal property or specific money must be involved.

Case: National Ctr. For Crisis Mgt., Inc. v. Lerner, NY Slip Op 00758 (2d Dept. 2012).

Tomorrow’s issue: Intervention.

Monday, February 13, 2012

Court holiday.

Courts are closed today to mark Lincoln's Birthday, and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue: Conversion.

Friday, February 10, 2012

Motions to dismiss.

Practice point: On a motion for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, see CPLR 3026; accept the facts as alleged in the complaint as true; accord the plaintiff the benefit of every possible favorable inference; and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note: Bare legal conclusions asserted in a complaint, however, are not presumed to be true, and whether the plaintiff can ultimately establish the allegations is not a factor.

Case: Knutt v. Metro Intl., S.A., NY Slip Op 00754 (2d Dept. 2012).

Tuesday’s issue: Conversion.

Thursday, February 9, 2012

Unlawful retaliation.

Practice point: To make out the claim, an employee-plaintiff must show that he or she has engaged in protected activity; (2) the employer was aware that the employee participated in the activity; (3) the employee suffered an adverse employment action based on the activity; and (4) there is a causal connection between the protected activity and the adverse employment action.

Student note: Once the plaintiff has met this initial burden, the burden shifts to the defendant to present legitimate, independent and nondiscriminatory reasons to support its actions. If the defendant meets this burden, the plaintiff must demonstrate that the reasons put forth by the defendant were merely a pretext.

Case: Delrio v. City of New York, NY Slip Op 00747 (2d Dept. 2012).

Tomorrow’s issue: Motions to dismiss.

Wednesday, February 8, 2012

Judgment as a matter of law.

Practice point: A defendant can establish prima facie entitlement to judgment as a matter of law by showing that the plaintiff cannot identify the cause of the accident.

Student note: A plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the injuries would be based on speculation.

Case: Califano v. Maple Lanes, NY Slip Op 00743 (2d Dept. 2012).

Tomorrow’s issue: Unlawful retaliation.

Tuesday, February 7, 2012


Practice point: To have standing in a particular dispute, a plaintiff must demonstrate an injury in fact that falls within the relevant zone of interests sought to be protected by law.

Student note: The holder of a beneficial interest in a corporation’s shares has standing to bring a derivative suit, pursuant to Business Corporation Law § 626.

Case: Bernfeld v. Kurilenko, NY Slip Op 00741 (2d Dept. 2012).

Tomorrow’s issue: Judgment as a matter of law.

Monday, February 6, 2012


Practice point: Purely economic loss resulting from a breach of contract does not constitute injury to property within the meaning of CPLR 1401, New York's contribution statute.

Student note: Some form of tort liability is a prerequisite to application of CPLR 1401.

Case: Galvin Bros. v. Town of Babylon, NY Slip Op 00331 (2d Dept. 2012).

Tomorrow’s issue: Standing

Friday, February 3, 2012

Summary judgment on a contract.

Practice point: When the parties' intent to be bound by a contractual obligation is determinable by written agreements, the question is one of law, and it can be resolved on a motion for summary judgment.

Student note: A fact question arises as to the parties' intent to enter into an enforceable obligation only where the intent must be determined by disputed evidence or inferences outside the written words of the instrument.

Case: Kaplan v. Roberts, NY Slip Op 00492 (2d Dept. 2012).

Monday’s issue: Contribution.

Thursday, February 2, 2012

Notice of claim.

Practice point: A plaintiff not asserting a tort claim against the municipality is not required to file a notice.

Student note: General Municipal Law Section 50-e(1)(a) provides that a notice is required "in any case founded upon tort."

Case: Johnson v. City of Peekskill, NY Slip Op 00491 (2d Dept. 2012).

Tomorrow’s issue: Summary judgment on a contract.

Wednesday, February 1, 2012

Assumption of the risk.

Practice point: 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 flow from such participation.

Student note: A participant's consent does not run to concealed or unreasonably increased risks.

Case: Charles v. Uniondale School District Bd of Ed., NY Slip Op 00479 (2d Dept. 2012).

Tomorrow’s issue: Notice of claim.