Friday, March 30, 2012


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.

Thursday, March 29, 2012

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).

Tomorrow’s issue: Indemnification.

Wednesday, March 28, 2012

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).

Tomorrow’s issue: Qualified privilege.

Tuesday, March 27, 2012

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.

Monday, March 26, 2012

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.

Friday, March 23, 2012


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.

Thursday, March 22, 2012


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.

Wednesday, March 21, 2012

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.

Tuesday, March 20, 2012

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.

Monday, March 19, 2012

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

Friday, March 16, 2012

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).
Monday’s issue: Primary assumption of risk.

Thursday, March 15, 2012


Practice point: To support a determination of sanctions pursuant to CPLR 3126, the moving party must demonstrate that the responsible party's actions were willful and contumacious.
Student note: Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading.
Case: Falcone v. Karagiannis, NY Slip Op 01653 (2d Dept. 2012).
Tomorrow’s issue: Legal malpractice.

Wednesday, March 14, 2012

Hearsay and interrogatories.

Practice point: Under the "speaking authority" exception to the hearsay rule, an employee's comments can be binding on an employer if the plaintiff submits evidence in admissible form establishing that the employee's statement was made within the scope of the employee's authority to speak for the employer.
Student note: Interrogatory responses may be used by any party for the purpose of impeaching the credibility of a deponent as a witness, pursuant to CPLR 3117[a][1] and 3131.
Case: Dank v. Sears Holding Mgt. Corp., NY Slip Op 01648 (2d Dept. 2012).
Tomorrow’s issue: Sanctions.

Tuesday, March 13, 2012

Caveat emptor.

Practice point: New York adheres to the doctrine, and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arms length, unless there is active concealment.
Student note: For concealment to be actionable as fraud, the plaintiffs must show that the defendants thwarted the plaintiffs' efforts to fulfill their responsibilities imposed by the doctrine.
Case: Camisa v. Papaleo, NY Slip Op 01645 (2d Dept. 2012).
Tomorrow’s issue: Hearsay and interrogatories.

Monday, March 12, 2012

Affidavits in support of summary judgment motions.

Practice point: CPLR 3212(b) requires that a motion for summary judgment must be supported by, among other things, an affidavit by someone with personal knowledge of the facts.
Student note: Notwithstanding this requirement, where a moving party supports the motion with an attorney's affirmation, deposition testimony, and other proof, the failure to submit an affidavit is not necessarily fatal.
Case: Maragos v. Sakurai, NY Slip Op 01592. (2d Dept. 2012).
Tomorrow’s issue: Caveat emptor.

Friday, March 9, 2012

Demands for a complaint.

Practice point: To avoid dismissal for failing to timely serve the complaint after a demand has been made pursuant to CPLR 3012(b), and to be entitled to an extension of time to serve the complaint under CPLR 3012(d), a plaintiff must demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action.

Student note: Plaintiff’s failure to provide an affidavit of merit from a person possessing personal knowledge of the facts underlying the action will result in a denial of plaintiff’s motion to extend the time to serve.

Case: Country Serv., Inc. v. Feiden & Assoc., P.C., NY Slip Op 01586 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Affidavits in support of summary judgment motions.

Thursday, March 8, 2012

Denial of a motion for summary judgment.

Practice point: Pursuant to CPLR 3212(f), a  court may deny a motion for summary judgment  if it appears from affidavits submitted in opposition  that facts essential to justify opposition may exist but cannot then be stated, especially when the opposing party has not had a reasonable opportunity for disclosure.

Student note: If the defendant has no personal knowledge of the relevant facts, it should be afforded the opportunity to conduct discovery, including deposition of the plaintiff.

Case: Jones v. American Commerce Ins. Co., NY Slip Op 01435 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Demands for a complaint.

Wednesday, March 7, 2012

Commencing a foreclosure action.

Practice point: In order to commence a foreclosure 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 by it.

Case: HSBC Bank USA v. Hernandez, NY Slip Op 01434 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Denial of a motion for summary judgment.

Tuesday, March 6, 2012

Piercing the corporate veil.

Practice point: A plaintiff seeking to pierce the corporate veil must show that complete domination was exercised over a corporation with respect to the transaction at issue, and that the domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury.

Student note: In addition, 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: Fernbach, LLC v. Calleo, NY Slip Op 01427 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Commencing a foreclosure action.

Monday, March 5, 2012

An employer's vicarious liability.

Practice point: An employer is vicariously liable for an employee's acts committed within the scope of employment and in furtherance of the employer's business.

Student note: A cause of action based on negligent hiring and supervision requires a showing that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.

Case: Evans v. City of Mount Vernon, NY Slip Op 01426 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Piercing the corporate veil.

Friday, March 2, 2012

Landlord's duty to protect tenants.

Practice point: Landlords have a common-law duty to take minimal precautions to protect tenants and their guests from the reasonably foreseeable criminal conduct of third parties.

Student note: If a tenant or guest is assaulted by an intruder, recovery against the landlord requires a showing that the landlord's conduct was a proximate cause of the injury.

Case: Brathwaite v. New York City Hous. Auth., NY Slip Op 01422 (2d Dept. 2012).

Here is the decision.

Monday's issue: An employer's vicarious liability.

Thursday, March 1, 2012

Motions for leave to renew.

Practice point: Pursuant to CPLR 2221(e), a motion for leave to renew must be based on new facts not offered on the prior motion that would change the prior determination, and must offer a reasonable justification for the failure to present such facts on the prior motion.

Student note: The motion is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

Case: Eskenazi v. Mackoul, NY Slip Op 01425 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Landlord's duty to protect tenants.