Friday, October 20, 2017

An enforceable personal guaranty.

Practice point:  While a personal guaranty must be in writing, it does not have to be notarized to make it legally binding on the parties.  Typographical errors do not render the guaranty unenforceable.  Where the only alleged mistake is in the reduction of the agreement to a writing, it is a scrivener's error, and, no matter how the error occurred, it may be corrected without reformation of the agreement.

Student note:  In the absence of a claim for reformation, the court may, as a matter of interpretation, carry out the parties' intentions by transposing, rejecting, or supplying words to make the meaning of the contract more clear.

Case:  82-90 Broadway Realty Corp. v. New York Supermarket, Inc., NY Slip Op 07233 (2d Dep't October 18, 2017)

Here is the decision.

Thursday, October 19, 2017

A residential owner's liability for a sidewalk fall.

Practice point:  There is an exemption from personal iability for failure to maintain the sidewalk if the  property is a "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes," pursuant to Administrative Code of the City of New York § 7-210[b].

While the statute does not expressly contain a primary residence requirement,  the term "owner occupied" generally is used to mean that the owner regularly occupies the property as a residence.  The legislative history shows that the exemption recognizes the inappropriateness of exposing small-property owners in residence, with limited resources, to exclusive liability regarding sidewalk maintenance and repair.

Student note:  The statute is to be strictly construed as creating liability in derogation of the common law.

Case:  Kalajian v. 320 E. 50th St. Realty Co., NY Slip Op 07225 (1st Dep't October 17, 2017)

Here is the decision.

Wednesday, October 18, 2017

CPLR 3126 and precluding evidence.

Practice point:  Before a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the party's failure to comply with discovery demands or court-ordered discovery was willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time.

Student note:  The nature and degree of a penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court.

Case:  Candela v. Kantor, NY Slip Op 07106 (2d Dep't October 11, 2017)

Here is the decision.

Tuesday, October 17, 2017

A motion for leave to renew.

Practice point:  The motion must be bsed on facts that were not offered on the prior motion and that would change the prior determination, pursuant to CPLR 2221[e][2].  Pursuant to [e][3], the movant movant must demonstrte a reasonable justification for not having presented these facts on the prior motion.

Student note:  While it may be within the court's discretion to grant leave to renew based on facts known to the moving party at the time of the prior motion, the motion is not a second chance given to parties who have not exercised due diligence in making their first factual presentation.

Case:  Byun Sik Chu v. Kerrigan, NY Slip Op 07105 (2d Dep't October 11, 2017)

Here is the decision.

Monday, October 16, 2017

A sufficiently pled gender discrimination claim.

Practice point:  The plaintiff sufficiently pled the necessary elements of the claim by alleging that another employee said that she was "inadequate" before he had ever observed her work and when all he knew about her was that she was a woman, and that, thereafter, he continually harassed and insulted her. The inference of gender-based discrimination is supported by the allegation that the plaintiff, after her termination, was almost immediately replaced by a male, as well as by the allegation that she was told that her crane was being taken out of operation, when the crane continued to be used, but with a male operator.

Case:  Schindler v. Plaza Constr., LLC, NY Slip Op 07182 (1st Dep't October 12, 2017)

Here is the decision. 

Friday, October 13, 2017

Leave to amend a pleading.

Practice point:  Pursuant to CPLR 3025(b), leave to amend a pleading will be granted when there is no significant prejudice or surprise to the opposing party, and where the evidence submitted in support of the motion for leave demonstrates that the proposed amendment may have merit.

Student note:  The movant must submit the proposed amendment, and, in order to deny the motion, the amendment's insufficiency must be clear and free from doubt.

Case:  Assevero v. Hamilton & Church Props., LLC, NY Slip Op 07103 (2d Dep't October 11, 2017)

Here is the decision.

Thursday, October 12, 2017

General jurisdiction.

Practice point:  New York courts may not exercise general jurisdiction against a defendant, either under the United States Constitution or CPLR 301, unless the defendant is domiciled in New York, or in the exceptional case where the individual's New York contacts  are so extensive as to support general jurisdiction, notwithstanding domicile elsewhere.  The purchase of an apartment in New York does not establish that the individual is domiciled in New York.  New York business activities undertaken on behalf of a corporate entity are not a basis for general jurisdiction.

Case:  IMAX Corp. v. Essel Group, NY Slip Op 07091 (1st Dep't October 10, 2017)

Here is the decision.

Wednesday, October 11, 2017

A motion to dismiss the complaint as time-barred.

Practice point:  On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5), on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute was tolled or otherwise inapplicable, or whether the action was commenced within the limitations period.

Student note:  In considering the motion, the court must take the allegations in the complaint as true, and resolve any inferences in favor of the plaintiff.

Case:  Cataldo v. Herrmann, NY Slip Op 06920 (2d Dep't October 4, 2017)

Here is the decision.

Tuesday, October 10, 2017

A dismissed claim of negligence and wrongful death.

Practice point:  The Appellate Division reversed the motion court's denial of summary judgment, and dismissed the claim against defendant hospital. The decedent, plaintiff's husband and a hospital employee, became intoxicated at a holiday party organized by hospital workers. The party was not sanctioned by the hospital, and was not held on hospital property. The hospital employees attended the party on their own time.  The decedent's coworkers contacted the plaintiff, herself a hospital employee, and then helped the decedent into the plaintiff's car.  The plaintiff drove home and left the decedent in the car, parked in their driveway, to sleep off his condition. An hour later, the plaintiff checked on the decedent, and found him, unresponsive, on the floor of the back seat. The autopsy report lists the cause of the death as alcohol intoxication and positional asphyxia.

The Appellate Division determined that the hospital employees, in assisting the decedent and placing him in his wife's care, did not assume a duty, and nothing they did put the decedent in a worse or different position of danger. Any opinions rendered about medical attention being unnecessary were nonactionable gratuitous commentary. In addition, placing the decedent into the car was not the proximate cause of his death, but merely furnished the occasion for its happening.

Case: Gillern v. Mahoney, NY Slip Op 06979 (1st Dep't October 5, 2017)

Here is the decision.

Friday, October 6, 2017

Settling an order.

Practice point:  Pursuant to 22 NYCRR 202.48[a], "[p]roposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted."

Student note:  Pursuant to 202.48[b], "[f]ailure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown."

Case:  HSBC Bank USA, N.A. v. Yonkus, NY Slip Op 06921 (2d Dep't October 4, 2017)

Here is the decision.

Thursday, October 5, 2017

A challenge to a co-op board's action.

Practice point:  A shareholder's challenge to a co-op board's action is made in the form of an article 78 proceeding.

Case:  Musey v. 425 E. 86 Apts. Corp., NY Slip Op 06880 (1st Dep't October 3, 2017)

Here is the decision.

Wednesday, October 4, 2017

A motion to file a late notice of claim.

Practice point:  In an action to recover damages for personal injuries resulting from a slip-and-fall, the Appellate Division reversed, and denied the plaintiff's motion, made pursuant to General Municipal Law § 50-e(5), for leave to serve a late notice of claim against nonparty New York City Housing Authority.  The Appellate Division found that the plaintiff failed to provide a reasonable excuse for his failure to timely serve the notice.  His saying that he first discovered the identity of the owner of the walkway at the § 50-h hearing is an unacceptable excuse, as it indicates a lack of due diligence in investigating the matter.  Even if the plaintiff had made an excusable error in identifying the public corporation upon which he was required to serve the notice, he did not proffer any explanation for the additional seven-month delay between the time that he discovered the error and the filing of his application for leave to serve a late notice.

Student note:  In determining whether a petitioner should be granted leave to serve a late notice of claim against a public housing authority, the court will consider, as key factors, whether the petitioner had a reasonable excuse for the delay in serving the notice; whether the public housing authority acquired actual knowledge of the essential facts of the claim within the statutory 90-day period or within a reasonable time thereafter; whether the petitioner made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the public housing authority will be substantially prejudiced by the delay in its defense on the merits, pursuant to General Municipal Law § 50-e[5] and Public Housing Law § 157[2].

Case:  Kelly v. City of New York, NY Slip Op 06640 (2d Dep't September 27, 2017)

Here is the decision.

Tuesday, October 3, 2017

A default judgment in a foreclosure action.

Practice point:  The Appellate Division affirmed the judgment of foreclosure and sale, finding that the defendant failed to show a reasonable excuse for his default and a potentially meritorious defense.  As the summons expressly warned that failure to respond could result in a default judgment and the loss of the defendant's home, it is not a reasonable excuse for him to assert that he had been "led to believe," by parties whom he did not name,  that he did not have to answer the complaint because he had submitted a loan modification application.

Student note:  Since the defendant failed to proffer a reasonable excuse for the default, the Appellate Division did not reach the issue of whether the defendant had demonstrated a potentially meritorious defense.

Case:  Wells Fargo Bank, N.A. v. Javier, NY Slip Op 06711 (1st Dep't September 26, 2017)

Here is the decision.

Monday, October 2, 2017

Preliminary injunctions.

Practice point:  To establish the right to a preliminary injunction, a plaintiff must prove by clear and convincing evidence (1) the likelihood of ultimate success on the merits; (2) irreparable injury absent the granting of the injunction; and (3) a balance of the equities in the plaintiff's favor, pursuant to CPLR 6301.

Student note:  The purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties.

Case:  19 Patchen, LLC v. Rodriguez, NY Slip Op 06636 (2d Dep't September 27, 2017)

Here is the decision.

Friday, September 29, 2017

Sua sponte dismissal.

Practice point:  The sua sponte dismissal of the complaint is not appealable as of right, pursuant to CPLR 5701[a][2].  However, pursuant to 5701[c], the Appellate Division may deem the notice of appeal to be a motion for leave to appeal, and grant the motion.

Case:  All Craft Fabricators, Inc. v. ATC Assoc., Inc., NY Slip Op 06595 (1st Dep't September 26, 2017)

Here is the decision.

Thursday, September 28, 2017

Protected materials.

Practice point:  The CPLR establishes three categories of protected materials: (1) privileged matter, absolutely immune from discovery, pursuant to CPLR 3101[b]; (2) an attorney's work product, also absolutely immune, pursuant to CPLR 3101[c]; and (3) trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means, pursuant to CPLR 3101 [d][2].  As to each category, the protection is supported by policy considerations.

Student note:  The burden of establishing a right to protection is on the party asserting it. The protection claimed will be narrowly construed, and its application must be consistent with the purposes underlying the immunity.

Case:  Venture v. Preferred Mut. Ins. Co., NY Slip Op 06594 (1st Dep't September 26, 2017)

Here is the decision.

Wednesday, September 27, 2017

A claim of negligent misrepresentation.

Practice point:  The  Appellate Division dismissed the claim where defendants demonstrated, prima facie, that there was no fiduciary or special relationship with the plaintiffs in this arm's length transaction.

Student note:  A cause of action alleging negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.

Case:  CSI Group, LLP v. Harper, NY Slip Op 06521 (2d Dep't September 20, 2017)

Here is the decision.

Tuesday, September 26, 2017

Res ipsa loquitur.

Practice point:  The plaintiff allegedly sustained personal injuries when a portion of the bedroom ceiling fell on her as she was sleeping. The plaintiff commenced this action against the defendant landlord to recover damages for her injuries, asserting a single cause of action premised on theories of negligent failure to maintain the premises in a reasonably safe condition, and the doctrine of res ipsa loquitur.  The defendant established, prima facie, that the doctrine of res ipsa loquitur is inapplicable by submitting evidence demonstrating that the plaintiff had been residing at her apartment for more than one year at the time of the incident, and that the defendant did not have the requisite exclusive control over the allegedly defective condition. In opposition, the plaintiff failed to raise an issue of fact as to the applicability of the doctrine, and so plaintiff cannot rely on res ipsa loquitur at trial.

Student note: The doctrine of res ipsa loquitur is a rule of evidence that permits an inference of negligence to be drawn solely from the happening of an accident where the plaintiff can show that: (1) the event is of the kind that ordinarily does not occur in the absence of someone's negligence; (2) the instrumentality that caused the injury is within the defendant's exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff.

Case:  Correa v. Matsias, NY Slip Op 06520 (2d Dep't September 20, 2017)

Here is the decisiion.

Monday, September 25, 2017

Forum non conveniens.

Practice point:  On a motion  to dismiss the complaint on the ground of forum non conveniens, pursuant to CPLR 327, the movant must demonstrate the relevant private or public interest factors that militate against a New York court's acceptance of the litigation. Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the situs of the actionable events, and the burden which will be imposed upon the New York courts, with no one single factor controlling.

Student note:  A court's determination of a motion to dismiss on the ground of forum non conveniens will not be disturbed on appeal unless the court failed to properly consider all the relevant factors or improvidently exercised its discretion in deciding the motion.

Case:  Park v. Heather Hyun-Ah Cho, NY Slip Op 06519 (2d Dep't September 20, 2017)

Here is the decision.

Friday, September 22, 2017

Documentary evidence on a motion to dismiss.

Practice point:  An unambiguous contract provision may qualify as documentary evidence within the meaning of CPLR 3211(a).

Student note:  To prevail on a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), a defendant must submit documentary evidence that utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Case:  13 Throop, LLC v. Triumph, the Church of the New Age, NY Slip Op 06516 (2d Dep't September 20, 2017)

Here is the decision.

Thursday, September 21, 2017

Insincere promises and fraud.

Practice point:  An insincere promise to perform a contractual obligation is not actionable as fraud.

Student note:  Absent this rule, contract claims would be routinely pleaded in the alternative as fraud, eroding the distinction between the two causes of action.

Case:  Cronos Group Ltd. v. XComIP, LLC, NY Slip Op 06515 (1st Dep't September 19, 2017)

Here is the decision.

Wednesday, September 20, 2017

A 3211(a) motion.

Practice point:  The court may not treat the motion as one for summary judgment without having given the parties notice that it intends to do so, pursuant to CPLR 3211(c).

Student note: On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the complaint must be construed liberally, the factual allegations must be deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences.  In opposition to the motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve claims that are inartfully pleaded but potentially meritorious.

Case:  Christ the Rock World Restoration Church Intl., Inc. v. Evangelical Christian Credit Union, NY Slip Op 06426 (2d Dep't September 13, 2017)

Here is the decision.

Tuesday, September 19, 2017

Moving for relief from a conditional order of preclusion.

Practice point:  To obtain relief from a conditional order of preclusion, the defaulting party must demonstrate a reasonable excuse for the failure to produce the requested items and the existence of a potentially meritorious claim or defense.

Student note:  In its discretion, a court may find that law office failure is a reasonable excuse.

Csse:  C.C. v. Vargas, NY Slip Op 06424 (2d Dep't September 13, 2017)

Here is the decision.

Monday, September 18, 2017

Appellate review after a nonjury trial.

Practice point:  In reviewing a determination made after a nonjury trial, the Appellate Division's authority is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses.  Where the trial court's findings of fact rest largely on considerations relating to the credibility of witnesses, the Appellate Division owes deference to the trial court's credibility determinations.

Student note:  Pursuant to CPLR 4404(b), after a nonjury trial, a court may, on the motion of a party or its own motion, set aside its decision and make new findings of fact or conclusions of law.

Case:  BNG Props., LLC v. Sanborn, NY Slip Op 06423 (2d Dep't September 13, 2017)

Here is the decision.

Friday, September 15, 2017

Summary judgment in a mortgage foreclosure action.

Practice point:  The moving plaintiff establishes a prima facie case through the production of the mortgage, the unpaid note, and evidence of default.  If the defendant puts standing at issue, the plaintiff must prove its standing in order to be entitled to relief.  A plaintiff has standing if, at the time the action is commenced, it is the holder or assignee of the underlying note.

Student note:  Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.

Case:  Bank of Am., N.A. v. Martinez, NY Slip Op 06422 (2d Dep't September 13, 2017)

Here is the decision.

Thursday, September 14, 2017

Determining damages for pain and suffering.

Practice point:  When the interval between the injury and death is relatively short, the elements to be considered include the degree of consciousness, the severity of pain, and the apprehension of impending death,

Case:  Matter of 91st St. Crane Collapse Litig., NY Slip Op 06419 (1st Dep't September 12, 2017)

Here is the decision.

Wednesday, September 13, 2017

A retaliation claim under Labor Law § 741.

Practice point:  The Appellate Division reversed the motion court's finding that plaintiff's statutory retaliation claim is completely barred by collateral estoppel. The issue of whether defendant hospital terminated plaintiff doctor because she reported inadequate medical care to her supervisors, and later, the Department of Health was not at issue in the prior administrative proceedings and related article 78 proceeding, and was not necessarily decided in the prior proceedings.

In the prior proceedings it was determined that plaintiff had engaged in professional incompetence on three occasions, and that defendant did not fabricate the allegations, but there was no express or implied ruling that defendant terminated her employment on the basis of that incompetence, or whether in terminating her, defendant had impermissibly retaliated against her for whistleblowing.

Student note:  While collaterel estoppel does not otherwise bar litigation of the retaliation claim, plaintiff is precluded from relitigating the three instances of incompetence found in the prior proceedings.

Case:  Mehulic v. New York Downtown Hosp., NY Slip OP 06416 (1st Dep't September 12, 2017)

Here is the decision.

Tuesday, September 12, 2017

Invoking a forum selection clause against a non-signatory.

Practice point:  Under New York law, a signatory to a contract may invoke a forum selection clause against a non-signatory if the non-signatory is so closely related to one of the signatories that enforcement of the clause is foreseeable.

Student note:  The rationale behind binding closely related entities to the forum selection clause is that it promotes stable and dependable trade relations.

Case:  Universal Inv. Advisory SA v. Bakrie Telecom PTE, Ltd., NY Slip Op 06344 (1st Dep't August 29, 2017)

Here is the decision.

Tomorrow's issue:  A retaliation claim under Labor Law § 741.

Monday, September 11, 2017

Sufficiency of service.

Practice point:  Service was proper where the process server attempted to effect service of the landlord's termination notice at the tenant's residential building during reasonable business hours and non-business hours, on two different days.  As the process server could get no closer to the tenant's apartment than the building's front door, after repeatedly ringing the doorbell to the apartment, he affixed the notice conspicuously to the building's front door and subsequently complied with the mailing requirement.

Case:  Matter of 322 W. 47th St. HDFC v. Loo, NY Slip Op 06403 (1st Dep't September 5, 2017)

Here is the decision.

Tomorrow's issue: Invoking a forum selection clause against a non-signatory.

Friday, September 8, 2017

A multiple dwelling's owner's duty of care.

Practice point:  Pursuant to Multiple Dwelling Law § 78[1], the owner is responsible for exercising reasonable care in keeping the property, including the wiring, in good repair.

Student note:  A property owner has a non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others.

Case:  Daly v. 9 E. 36th LLC, NY Slip Op 06404 (1st Dep't September 5, 2017)

Here is the decision.

Monday's issue: Sufficiency of service.

Thursday, September 7, 2017

Moving for summary judgment in a negligence action.

Practice point:  A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the accident.

Student note:  Since there can be more than one proximate cause of an accident, it is for the trier of fact to determine the issue of proximate cause.

Case:  Searless v. Karczewski, NY Slip Op 06393 (2d Dep't August 30, 2017)

Here is the decision.

Tomorrow's issue:  A multiple dwelling's owner's duty of care.

Wednesday, September 6, 2017

Ambiguous contracts.

Practice point  To be found ambiguous, a contract must be susceptible of more than one commercially reasonable interpretation.  Whether there is an ambiguity must be determined by examining the entire contract and considering the parties'  relation and the circumstances under which the contract was executed, with the wording to be considered in the light of the obligation as a whole and the intention of the parties as manifested thereby.

Student note:  In any question of the interpretation of a written contract, the objective is to determine what is the intention of the parties as derived from the language employed.

Case:  Perella Weinberg Partners LLC v. Kramer, NY Slip Op 06341 (1st Dep't August 29, 2017)

Here is the decision.

Tomorrow's issue:  Moving for summary judgment in a negligence action.

Tuesday, September 5, 2017

A claim for breach of fiduciary duty.

Practice point:  The elements of the cause of action are (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages directly caused by the defendant's misconduct. The claim must be pleaded with particularity under CPLR 3016(b).

Student note:  A fiduciary relationship arises when one is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation. It is grounded in a higher level of trust than normally present in the marketplace between those involved in arm's length business transactions.

Case:  Saul v. Cahan, NY Slip Op 06390 (2d Dep't August 30, 2017)

Here is the decision.

Tomorrow's issue:  Ambiguous contracts.

Monday, September 4, 2017

Court holiday.

                                        Triangle Shirtwaist Factory 1911

Friday, September 1, 2017

Striking a pleading.

Practice point:  The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery is willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse.

Student note:  The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court.

Case:  Schiller v. Sunharbor Acquisition I, LLC, NY Slip Op 05866 (2d Dep't July 26, 2017)

Here is the decision.

Tuesday's issue:  A claim for breach of fiduciary duty.

Thursday, August 31, 2017

A motion for a finding of civil contempt.

Practice point:  To prevail on a motion to hold another in civil contempt, the moving party must prove by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; (2) that the other party, with knowledge of the order's terms, disobeyed the order; and (3) that the movant was prejudiced by the offending conduct.

Student note:  To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor's actions were calculated to or actually did defeat, impair, impede, or prejudice the movant's rights or remedies.

Case:  Matter of Michael F. (Shreeis J.), NY Slip Op 05820 (2d Dep't July 26, 2017)

Tomorrow' issue:  Striking a pleading.

Wednesday, August 30, 2017

Stipulations of settlement and judgments of divorce.

Practice point:  A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to the principles of contract construction and interpretation. In  interpreting the stipulation, the court will construe it in such a way as to give fair meaning to all the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.

Student note:  Where the parties' intention is clearly and unambiguously set forth, the court must vie effect to their intent as indicated by the language they used.

Case:  Matter of Christie, NY Slip Op 05818 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  A motion for a finding of civil contempt.

Tuesday, August 29, 2017

A conditional order of preclusion.

Practice point:  A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order.  If the party fails to produce the discovery by the specified date, the conditional order becomes absolute.

Student note:  To be relieved of the adverse impact of the conditional order, a party is required to demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious defense.

Case:  Naiman v. Fair Trade Acquisition Corp., NY Slip Op 05830 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  Stipulations of settlement and judgments of divorce.

Monday, August 28, 2017

The doctrine of primary assumption of the risk.

Practice point:  Under the doctrine, 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 which flow from such participation.

Student note:  This includes risks associated with the construction of the playing surface and any open and obvious condition on it.

Case:  MacIsaac v. Nassau County, NY Slip Op 05814 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  A conditional order of preclusion.

Friday, August 25, 2017

A co-owner's mortgage of a property.

Practice point:  A mortgage given by one of several parties with an interest in the mortgaged property is valid, but it gives the mortgagee security only up to the interest of the mortgagor,

Student note:  Under New York law, a co-owner may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other.

Case:  John T. Walsh Enters., LLC v. Jordan, NY Slip Op 05813 (2d Dep't July 26, 2017)

Here is the decision.

Monday's issue:  The doctrine of primary assumption of the risk.

Thursday, August 24, 2017

Open-court stipulations.

Practice point:  As with any contract, the stipulation will be enforced so long as it is sufficiently definite in its material terms so as to enable a court to determine exactly what the parties have agreed to.

Student note:  Open-court stipulations are judicially favored, and will not be set aside absent fraud, overreaching, mistake, duress, or unconscionability.

 Case:  Clement v. Millbrook Cent. Sch. Dist., NY Slip Op 05806 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  A co-owner's mortgage of a property.

Wednesday, August 23, 2017

An account stated.

Practice point:  An essential element of an account stated is that the parties came to an agreement with respect to the amount due.

 Student note:  An account stated is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them which is independent of the original obligation.

Case:  Caring Professionals, Inc. v. Landa, NY Slip Op 05803 (2d Dep't July 26 2017)

Here is the decision.

Tomorrow's issue:  Open-court stipulations.

Tuesday, August 22, 2017

A court's vacating a note of issue.

Practice point:  On its own motion, a court may, at any time, vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect or that the certificate of readiness fails to comply with the requirements of 22 NYCRR 202.21.

Case:  Bundhoo v. Wendy's, NY Slip Op 05802 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  An account stated.

Monday, August 21, 2017

A landowner's liability for injuries during storms.

Practice point:  The landowner is not liable for injuries sustained as the result of slippery conditions during the storm, or for a reasonable time thereafter.  However, if the landowner engages in snow removal, it must act with reasonable care to avoid creating a hazardous condition or making the bad situation worse.

Case:  Balan v. Rooney, NY Slip Op 05801 (2d Dep't July 26, 2017)  

Here is the decision. 

Tomorrow's issue:  A court's vacating a note of issue.

Thursday, August 17, 2017

A cause of action sounding in negligence.

The elements of the cause of action are (1) a duty owed by the defendant to the plaintiff; (2) the defendant's breach of that duty; and (3) injury proximately resulting from the defendant's breach.

Practice point:  The existence and scope of a duty of care is a question of law for the courts to decide.

Case:  Abbott v. Johnson, NY Slip Op 05800 (2d Dep't July 26, 2017)

Here is the decision.

Monday's issue:  A landowner's liability for injuries during storms.

The public's right to access to the courts.

Practice point:  While public policy mandates free access to the courts, a party may forfeit that right if she or he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will.

Case:  Pavic v. Djokic, NY Slip Op 05735 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  A cause of action sounding in negligence.

Wednesday, August 16, 2017

The continuing wrong doctrine.

Practice point:  Where there is a series of continuing wrongs, the doctrine tolls the limitation period until the date of the commission of the last wrongful act.

Case:  Palmeri v. Wilkie Farr & Gallagher LLP, NY Slip Op 05794 (1st Dep't July 25, 2017)

Here is the decision.

Tomorrow's issue:  The public's right to access to the courts.

Tuesday, August 15, 2017

Contract interpretation.

Practice point:  The objective in interpreting a contract is to determine the parties' intent from the language they used and to fulfill their reasonable expectations.  The court's role is to enforce the parties' agreement made by the parties, not to add, excise or distort the meaning of the terms they chose to include, thereby creating a new contract under the guise of construction. 

Student note:  Although words are generally afforded their ordinary meaning, technical words are to be given their generally accepted technical meaning, and interpreted as usually understood by the persons in the profession or business to which they relate.

Case:  Landmark Ventures, Inc. v. H5 Tech., Inc., NY Slip Op 05713 (2d Dep't July 19, 2017)

Here is the decision. 

Tomorrow's issue:  The continuing wrong doctrine.

Monday, August 14, 2017

Routine maintenance and a Labor Law claim.

Practice point:  Routine maintenance is outside the scope of Labor Law § 240(1). Work constitutes routine maintenance when it involves replacing components that, in the course of normal wear and tear, require replacement.

Student note: To prevail on a cause of action under Labor Law § 240(1), a plaintiff must establish that the injury occurred while erecting, demolishing, repairing, altering, painting, cleaning, or pointing a building or structure.

Case:  Ferrigno v. Jaghab, Jaghab & Jaghab, P.C., NY Slip Op 05709 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  Contract interpretation.

Friday, August 11, 2017

The emergency doctrine.

Under the doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor will not be negligent if, in context, the actor's actions are reasonable and prudent.

Practice point:  A driver traveling on a road controlled by a stop sign who fails to yield the right of way is in violation of Vehicle and Traffic Law § 1142(a), and is negligent as a matter of law.

Student note:  If the offending vehicle's driver blames brake failure, the driver must show that the brake problem was unanticipated.

Case:  D'Augustino v. Bryan Auto Parts, Inc., NY Slip Op 05708 (2d Dep't July 19, 2017)

Here is the decision.

Monday's issue:  Routine maintenance and a Labor Law claim.

Thursday, August 10, 2017

A religious corporation's sale of real property.

Practice point:  Religious Corporations Law § 12(1) provides that in order to sell any of its real property, a religious corporation must apply for, and obtain, leave of court, pursuant to Not-For-Profit Corporation Law § 511.

Student note:  The purpose of this requirement is to protect the members of the religious corporation, the real parties in interest, from loss through unwise bargains and from misuse of the property.

Case:  Heights v. Schwarz, NY Slip Op 05707 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  The emergency doctrine.

Wednesday, August 9, 2017

In a trip-and-fall action, a trivial defect.

Practice point:  In moving to dismiss on this basis, a defendant must make a prima facie showing that the defect is physically insignificant, and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses.

Student note:  On a sufficient showing, the burden shifts to the plaintiff to establish an issue of fact.

Case:  Chojnacki v. Old Westbury Gardens, Inc., NY Slip Op 05706 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  A religious corporation's sale of real property.

Tuesday, August 8, 2017

Dismissal of a legal malpractice claim.

Practice point: To recover damages for legal malpractice, a plaintiff must establish that the 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:  Establishing causation requires a showing that, but for the lawyer's negligence, the plaintiff would have prevailed in the underlying action, or would not have incurred any damages.

Case:  Burbige v. Siben & Ferber, NY Slip Op 05704 (2d Dep't July 19, 2017)

Tomorrow's issue:  In a trip-and-fall action, a trivial defect.

Monday, August 7, 2017

An age and disability discrimination claim.

Plaintiff commenced this action to recover damages for employment discrimination on the basis of disability and age in violation of the New York State Human Rights Law, at Executive Law § 296 (NYSHRL) and the New York City Human Rights Law, at Administrative Code of City of NY § 8-107 (NYCHRL). Plaintiff alleges that defendant terminated her employment because she was physically restricted from performing a certain filing task, as she had recently undergone surgery and was still recovering.  Plaintiff also alleges that, after the termination, her employer misrepresented the facts of her discharge to the New York State Department of Labor in order to prevent her from claiming unemployment benefits.

The Appellate Division reversed the motion court's denial of summary judgment for defendant, and dismissed the complaint. 

Practice points:  As to the alleged violations of the NYSHRL, defendant submitted plaintiff's medical documentation indicating that she was cleared to return to work "without restrictions." This evidence establishes, prima facie, that plaintiff did not suffer a disability requiring any accommodation.  Defendant met its burden of offering a legitimate, nondiscriminatory reason for terminating plaintiff's employment and demonstrated that there were no material issues of fact as to whether those explanations were pretextual.

As to the alleged violations of the NYCHRL, defendant made a prima facie showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in its challenged actions.

Student note:  The testimony of defendant's employees before the New York State Department of Labor was absolutely privileged.

Case:  Bull v. Metropolitan Jewish Health Systems, Inc., NY Slip Op 05703 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  Dismissal of a legal malpractice claim.

Friday, August 4, 2017

Determining the amount and duration of maintenance.

Practice point:  The court will consider factors such as the duration of the marriage; the parties' standard of living during the marriage; the parties' income and property; the distribution of marital property; the parties' health; the parties' present and future earning capacity; the ability of the party seeking maintenance to become self-supporting; and the reduced or lost lifetime earning capacity of the party seeking maintenance.

Student note:  The determination is committed to the sound discretion of the trial court, and it will be made on the unique facts before the court. 

Case:  Brinkmann v. Brinkmann, NY Slip Op 05702 (2d Dep't July 19, 2017)

Here is the decision.

Monday's issue:  An age and disability discrimination claim.

Thursday, August 3, 2017

Vacating an arbitration award for partiality.

Practice point:  To vacate the award because of evident partiality under the Federal Arbitration Act (9 U.S.C. § 10[a][2], the movant must show that, given the totality of the circumstances, a reasonable person would have to conclude that an arbitrator was partial to one party.  While this showing requires something more than the mere appearance of bias, proof of actual bias is not required. Instead, a finding of partiality can be inferred from objective facts inconsistent with impartiality. While actual knowledge of a conflict can be dispositive of the evident partiality test, the absence of actual knowledge is not.

Student note:  The court will consider factors such as (1) the extent and character of the personal interest, pecuniary or otherwise, of the arbitrator; (2) the directness of the relationship between the arbitrator and the party he is alleged to favor; (3) the connection of that relationship to the arbitrator; and (4) the proximity in time between the relationship and the arbitration proceeding.

Case:  Matter of TCR Sports Broadcasting Holding, LLP v. WN Partner, LLC, NY Slip Op 05689 (1st Dep't July 13, 2017)

Here is the decision. 

Tomorrow's issueDetermining the amount and duration of maintenance.

Wednesday, August 2, 2017

An unenforceable arbitration provision.

Practice point:  An arbitration provision which prohibits class, collective, or representative claims violate the National Labor Relations Act and is unenforceable.

Case:  Gold v. New York Life Ins. Co., NY Slip Op 05695 (1st Dep't July 18, 2017)

Here is the decision.

Tomorrow's issue: Vacating an arbitration award for partiality.

Tuesday, August 1, 2017

A claim for injuries caused by a domestic animal.

Practice point:  New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal.  The settled law in New York is that a domestic animal's owner who either knows or should have known of the animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities.

Student note:  Once this knowledge is established, the owner faces strict liability.

Case:  Abrahams v. City of Mount Vernon, NY Slip Op 05699 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  An unenforceable arbitration provision.

Monday, July 31, 2017

A hearing on an application for the award of attorney's fees.

Practice point:  The plaintiff waived his right to a hearing on the defendant's application by agreeing that, although "each party retains the right to appeal any order of this court with respect to counsel fees," the parties' respective applications for an award of an attorney's fee would be "done simultaneously without a right to oppose or reply."

Case:  Fishman v. Solomon, NY Slip Op 05581 (2d Dep't July 12, 2017)

Here is the decision.

Tomorrow's issue:  A claim for injuries caused by a domestic animal.

Friday, July 28, 2017

A breach of contract claim.

The law office-defendant, an LLC, opened an IOLA account with the bank-plaintiff and deposited a purported client's cashier's check into the account. Shortly thereafter, the client, through the law office, directed that the majority of the funds be wired to two international parties. Although the bank's business deposit accounts brochure says that a transfer of more than $5,000 out of a new account will be made only after nine business days, the money was wired out of the account before the ninth business day, after the bank's employees had verified by telephone with the clearinghouse bank that the check had cleared. A few days later, it was discovered that the check was fraudulent.

Practice point:  The breach of contract claim was dismissed as against the lawyer because he is not the named customer on the bank account, and there is no basis for holding him liable in the documents that comprise the application to open the account. The negligence cause of action also was dismissed as against him. Limited Liability Company Law § 1205(a) makes an LLC's member liable for negligence in the furnishing of services, that is, malpractice. Here, however, neither the lawyer nor the LLC were providing personal services to the bank; they were acting as its customer. Additionally, there are no allegations otherwise supporting a personal claim against the lawyer based on piercing the corporate veil.

Case:  Metropolitan Commercial Bank v. Levy, NY Slip Op 05505 (1st Dep't July 6, 2017)

Here is the decision. 

Tomorrow's issue:  A hearing on an application for the award of attorney's fees.

Thursday, July 27, 2017

Forum selection clauses.

Practice point:  Where a contracting party has agreed to submit to the jurisdiction of a court, that party is precluded from disputing the court's jurisdiction on the grounds of forum non conveniens.

Case:  Honeywell Intl. Inc. v. ARC Energy Servs., Inc. NY Slip Op 05686 (1st Dep't July 13, 2017)

Here is the decision. 

Tomorrow's issue:  A breach of contract claim.

Wednesday, July 26, 2017

An alleged breach of the employer's fiduciary duty.

Practice point:  An employer-employee relationship, without more, does not give rise to a fiduciary duty.

Case:  Brook v. Peconic Bay Med. Ctr., NY Slip Op 05681 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  Forum selection clauses.

Tuesday, July 25, 2017

An emailed settlement agreement.

The Appellate Division reversed the motion court and granted defendant's motion to enforce the settlement agreement. The emails between the parties' counsels counsel sufficiently set forth an enforceable agreement to settle plaintiffs' claims, and plaintiff's counsel, who had authority to bind the plaintiff, accepted the defendant's offer..

Practice point:  Counsel typed his name at the end of the email accepting defendants' offer, which satisfied CPLR 2104's requirement that settlement agreements be in a writing subscribed by the party or the party's attorney.

Case:  Jimenez v. Yanne, NY Slip Op 05677 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  An alleged breach of the employer's fiduciary duty.

Monday, July 24, 2017

An affidavit submitted in oppositon to summary judgment.

Practice point:   The motion court may consider the affidavit even though it is notarized out-of-state and lacks a certificate of conformity, pursuant to CPLR 2309(c).

Case:  Redlich v. Stone, NY Slip Op 05676 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  An emailed settlement agreement.

Friday, July 21, 2017

Motions to compel or stay arbitration.

Practice point:  On the motion, the court will first determine whether the parties have agreed to submit their disputes to arbitration, and, if so, whether this dispute comes within the scope of their agreement.  The court will apply ordinary state-law principles that govern the formation of contracts.

Case: Degraw Constr. Group, Inc. v. McGowan Bldrs., Inc., NY Slip Op 05580 (2d Dep't July 12, 2017)  

Here is the decision.

Monday's issue:  An affidavit submitted in opposition to summary judgment.

Thursday, July 20, 2017

Documentary evidence and dismissal.

Practice point:  A motion to dismiss a complaint based upon documentary evidence under CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence for the purpose of a motion to dismiss, the evidence must be unambiguous and of undisputed authenticity. Affidavits, deposition testimony, and letters are not considered documentary evidence within the meaning of the statute. 

Case:  Board of Mgrs. of 100 Congress Condominium v. SDS Congress, LLC, NY Slip Op 05414 (2d Dep't July 5, 2017) 

Here is the decision. 

Tomorrow's issue:  Motions to compel or stay arbitration.

Wednesday, July 19, 2017

Conspiracy to commit fraud.

Practice point:  New York does not recognize a cause of action for conspiracy to commit fraud.

Case:  Maheras v. Awan, NY Slip Op 05309 (1st Dep't June 29, 2017)

Here is the decision. 

Tomorrow's issue:  Documentary evidence and dismissal.

Tuesday, July 18, 2017

Specific performance as to real property.

Practice point:  To prevail on a cause of action for specific performance of a contract for the sale of real property, a purchaser-plaintiff must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations; that the vendor was able to convey the property; and that there is no adequate remedy at law.

Case:  1107 Putnam, LLC v. Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., NY Slip Op 05411 (2d Dep't July 5, 2017)

Here is the decision.

Tomorrow's issue:  Conspiracy to commit fraud.

Monday, July 17, 2017

A defendant's cross-motion for summary judgment dismissing the complaint.

The plaintiff alleges that he was riding a bicycle in Queens when a minivan owned and operated by the defendant pulled out of a driveway and struck him. Later that evening, the plaintiff returned to the accident site, identified the minivan he believed was involved in the accident, and recorded its license plate number. The plaintiff commenced this action to recover damages for personal injuries. The defendant cross-moved for summary judgment dismissing the complaint, contending that the plaintiff's deposition testimony revealed that the plaintiff would be unable to prove that the defendant's vehicle was the vehicle involved in the accident. The Supreme Court denied the cross motion, concluding that the defendant had failed to establish, prima facie, that his vehicle was not involved in the accident. The Appellate Division affirmed.

Practice point:  A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case. Here, the defendant failed to make a prima facie showing of his entitlement to judgment as a matter of law because he offered no evidence to affirmatively demonstrate that his vehicle was not the vehicle that struck the plaintiff. Although the defendant pointed to alleged gaps in the plaintiff's proof revealed by the plaintiff's deposition testimony, this was insufficient to satisfy his initial burden. Since the defendant failed to sustain his prima facie burden, the Supreme Court properly denied his cross motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers.

Case:  Feldberg v. Skorupa, NY Slip Op 05199 (2d Dep't June 28, 2017)

Here is the decision

Tomorrow's issue:  Specific performance as to real property.

Friday, July 14, 2017

A claim of libel per se.

After the plaintiff installed a custom home theater system in the defendant's home, the defendant posted a review of the plaintiff's services on the Internet website Yelp.com. The plaintiff commenced this action, alleging that the review constituted libel per se. The defendant moved to dismiss, pursuant to CPLR 3211(a)(7). The Supreme Court granted the defendant's motion, and the Appellate Division affirmed.

Practice point:  A libel action cannot be maintained unless it is premised on published assertions of fact.  Whether an allegedly defamatory statement constitutes actionable fact or nonactionable opinion is a question of law to be resolved by the courts. In resolving that question, rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the courts should consider the content of the communication as a whole, and look to the over-all context in which the assertions were made in order to determine  whether a reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff.

Here, given the context in which the challenged statements were made, and viewing the content of the review as a whole, a reasonable reader would believe that the review's writer was a dissatisfied customer who was expressing an opinion.

Case:  Crescendo Designs, Ltd. v. Reses, NY Slip Op 05198 (2d Dep't June 28, 2017)

Here is the decision.

Monday's issue:  A defendant's cross-motion for summary judgment dismissing the complaint.

Thursday, July 13, 2017

A landowner's duty of care.

Practice point:  A landowner has a duty to exercise reasonable care in maintaining the property in a safe condition under all circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property.  However, there is no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by persons using the property.

Case:  Commender v. Strathmore Ct. Home Owners Assn., NY Slip Op 05197 (2d Dep't June 28, 2017)

Here is the decision.

Tomorrow's issue:  A claim of libel per se.

Wednesday, July 12, 2017

An action in tort against the Transit Authority.

Practice point:  Service of a notice of claim within 90 days of accrual of the claim is a condition precedent to an action sounding in tort against the MTA and the Transit Authority.

Case:  Brunache v. MV Transp., Inc., NY Slip Op 05196 (2d Dep't June 28, 2017)

Here is the decision.

Tomorrow's issue:  A landowner's duty of care.

Tuesday, July 11, 2017

Precluding photos of an accident site.

In this personal injury action, plaintiff alleged that he was on foot, crossing the street, when he fell into a sinkhole.  Hi's theory of the case is that the City and its pavement restoration contractor, a third-party defendant, performed the work that resulted in the sinkhole.

At trial, the court precluded plaintiff from introducing into evidence photographs of the sinkhole, taken two weeks after the accident, finding that they did not fairly and accurately depict the way the accident site looked on the date of the accident.

The Appellate Division said that the trial court erred in precluding the photos.

Practice point:  Plaintiff authenticated the photos at his deposition, and testimony at trial could have explained how and why the scene depicted in the photos did or did not differ from  the site on the day of the accident. Excluding the photos meant that plaintiff was not able to show the jury the hole into which he allegedly fell.

Case:  Gonzalez v. City of New York, NY Slip Op 05180 (1st Dep't June 27, 2017)

Here is the decision.

Tomorrow's issue:  An action in tort against the Transit Authority.

Monday, July 10, 2017

Dismissal for lack of personal jurisdiction.

The Appellate Division reversed, and dismissed the complaint, finding that defendants did not conduct activities in New York, thereby invoking the benefits and protections of its laws and establishing personal jurisdiction. The telephone and email communications between the Latvian defendants and plaintiff's New York office, concerning a contemplated association in the acquisition of a Latvian bank, with no presence in New York, do not constitute the transaction of business in New York.

In addition, defendants never entered New York in connection with their dealings with plaintiff; the parties' electronic communications also ran between defendants and plaintiff's London office; plaintiff traveled to Latvia in connection with this matter; and, if the bank were acquired, the parties' contemplated association would be centered in Latvia.

Practice point:  Even if New York had personal jurisdiction existed over defendants, the Appellate Division would dismiss on the ground of forum non conveniens, in view of Latvia's being the principal situs of the underlying transaction, the pendency in Latvia of an earlier-filed action between the same parties concerning this dispute, and the likely applicability of Latvian law under a grouping-of-contacts analysis.

Case:  Ripplewood Advisors, LLC v. Callidus Capital SIA, NY Slip Op 05157 (1st Dep't June 22, 2017)

Here is the decision.

Tomorrow's issue:  Precluding photos of an accident site.

Friday, July 7, 2017

Discovery sanctions.

In this action for attorneys' fees and costs, the Appellate Division affirmed the money judgment and the denial of the motion to vacate the dismissal.

The plaintiffs failed to comply with a so-ordered stipulation that the complaint would be dismissed unless the plaintiffs responded to the defendants' demand for interrogatories and notice for discovery and inspection that had been outstanding for more than two years, despite several court orders directing a response. Upon the plaintiffs' failure to comply, the conditional order became final and a judgment was entered dismissing the complaint.

Case:  150 Centreville, LLC v. Lin Assoc. Architects, P.C., NY Slip Op 05056 (2d Dep't June 21 2017)

Here is the decision.

Monday's issue:  Dismissal for lack of personal jurisdiction.

Thursday, July 6, 2017

Claims for prima facie tort and tortious interference.

Practice point:  It is well settled that prima facie tort is not designed to provide a catch-all alternative for every cause of action that cannot otherwise stand on its own. A tortious interference claim will fail where plaintiff was not a party to any contract with a third party, or where plaintiff does not identify any damages apart from those for which he already has been compensated.

Case:  Britt v. City of New York, NY Slip Op 05154 (1st Dep't June 22, 2017)

Here is the decision.

Tomorrow's issue:  Discovery sanctions.

Wednesday, July 5, 2017

A fall at work.

The Appellate Division affirmed denial of defendant's motion for dismissal in this action where the plaintiff, a school employee, alleges that, while walking in a hallway, she slipped and fell on water after the floor had been mopped by a nonparty employee of the defendant.

The Appellate Division found that plaintiff's affidavit presents a triable issue of fact as to whether a there was a special employee relationship between the school and the nonparty employee.  Plaintiff set forth that no one from the school supervised his work or directed his daily schedule, and that the school did not provide him with equipment or a uniform.

Practice point:  The motion court properly considered plaintiff's affidavit, as it did not contradict her deposition testimony. In addition, plaintiff's deposition testimony and affidavit provide a non-speculative basis for her account of the accident, and sufficiently demonstrates a nexus between the hazardous condition and the circumstances of her fall, because she testified that immediately after she fell she saw that the floor was wet and that nearby there was a janitor's cart with wet floor signs attached to it.

Case:  Cartagena v. Access Staffing, LLC, NY Slip Op 05025 (1st Dep't June 20, 2017)

Here is the decision.

Tomorrow's issue: Claims for prima facie tort and tortious interference.

Tuesday, July 4, 2017

Court holiday.

                                         Our soldiers' lives and their families' tears.


                                            55 Water Street. Please visit some time.
             

Monday, July 3, 2017

A fall in the laundry room.

The Appellate Division reversed, and dismissed the complaint as against building owner-defendant in this action where plaintiff's decedent allegedly slipped and fell on a puddle of water in the laundry room of his apartment building. The decedent was deposed before he died. He testified that, as was his custom, on the day of the incident he went to the laundry room twice in the early morning hours. The first time, when he went to load some wet clothes into a dryer, he did not see any water on the floor. No one else was there, and no other machines were in use. He left without incident, and then returned to remove his clothes from the dryer. Again, no one else was there, and no machines were in use. The dryer had already come to a stop. He took his clothes from the dryer, and as he took one step away from the dryer,  he slipped and fell. After he fell, he saw, for the first time, that there was water on the floor.

Practice point:  In a slip-and-fall action, a defendant who moves for summary judgment has the initial burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had [actual or constructive notice of its existence. 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 defendant's employees to discover and remedy it.

Here, the evidence submitted by the defendant in support of its motion, including the decedent's deposition testimony, was sufficient to establish, prima facie, that the defendant did not create the alleged hazardous condition or have actual or constructive notice of it. A general awareness that the laundry room floor could become wet  is legally insufficient to constitute constructive notice of the particular condition that allegedly caused the decedent to slip and fall.

Case:  Adamson v. Radford Mgt. Assoc., LLC, NY Slip Op 05057 (2d Dep't June 2, 2017)

Here is the decision.

Wednesday's issue:  A fall at work.

Friday, June 30, 2017

Spoilation of evidence.

Practice point:  New York does not recognize spoilation of evidence as an independent tort. 

Case:  LaLima v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 04825 (1st Dep't June 14, 2017) 

Here is the decision.  

Monday's issue:  A fall in the laundry room.

Thursday, June 29, 2017

Medical malpractice and the continuous treatment doctrine.

The Appellate Division affirmed dismissal as against defendant Health and Hospitals Corporation in this action where plaintiff alleges that defendants were negligent in failing to timely diagnose a cancerous wound. The motion court granted HHC's motion to dismiss the claims based on plaintiff's own conduct and his failure to file a timely notice of claim, in violation of General Municipal Law § 50-e(1)(a).

Plaintiff was discharged from an HHC hospital in November 2010 and did not return to an HHC hospital for treatment until May 2012, when he received the cancer diagnosis. The notice of claim was filed shortly after plaintiff's discharge from the hospital in October 2012, more than 90 days after the claim's accrual in November 2010.

Practice point:  The Appellate Division rejected plaintiff's contention that both the November 2010 and May 2012 visits were part of a continuous course of treatment, tolling the period for filing a notice of claim, pursuant to CPLR 214-a   It is clear that, at the time of plaintiff's 2010 discharge,  HHC anticipated that it would provide further treatment.  However, it also is clear that plaintiff did not anticipate any further treatment by HHC. as, in the interim period, he began treatment by a co-defendant acupuncturist who plaintiff thought was a licensed physician.  Plaintiff's actions indicated an intention to discontinue his relationship with HHC, and, therefore, his return visit must be deemed a renewal, rather than a continuation, of the physician-patient relationship.

Case:  Jianfeng Jiang v. Xue Chao Wei, NY Slip Op 04896 (1st Dep't June 15, 2017)

Here is the decision.

Tomorrow's issue:  Spoilation of evidence.

Wednesday, June 28, 2017

Standing to sue a bank for the return of a check.

The Appellate Division affirmed dismissal of this action where plaintiff asserts that he and a friend went together to his friend's bank, because he wanted to cash a check, and, due to his immigration status, he had no identification. The two signed their names in front of the teller, before sliding the check under the teller window, with a deposit slip that instructed to clear the funds into the friend's account. The bank rejected the deposit, closed the friend's account, and did not issue a replacement check until several months later.

Practice point:  When plaintiff endorsed and delivered the check to his friend, the friend became the holder of the check, pursuant to NY UCC 3-202[1]. Thus, only the friend was entitled to negotiate the check or to enforce payment in his own name, pursuant to NY UCC 3-301[1]. Plaintiff's argument that he, as payee of the check, is entitled to enforce its return or payment is unavailing. Plaintiff lacks standing to sue the bank for the return or proceeds of the check, because he is no longer the holder of the check.

Case:  Delight Bvunzawabaya v. JP Morgan Chase & Co., NY Slip Op 04891 (1st Dep't June 15, 2017)

Here is the decision.

Tomorrow's issue:  Medical malpractice and the continuous treatment doctrine.

Tuesday, June 27, 2017

CPLR 205(a).

CPLR § 205. Termination of action. (a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

Practice point:  An out-of-state action is not a "prior action" within the meaning of the statute.

Case in point:  Deadco Petroleum v. Trafigura AG, NY Slip Op 04887 (1st Dep't June 15, 2017)

Here is the decision.

Tomorrow's issue:  Standing to sue a bank for the return of a check.

Monday, June 26, 2017

A non-resident's consent to jurisdiction.

The Appellate Division reversed the motion court and dismissed the complaint in this action where the plaintiff alleges that he brokered a deal for the purchase of a company, and that the defendants agreed that, on entering into a purchase agreement, they would pay him a commission, but did not. The defendants moved  to dismiss pursuant to CPLR 3211(a)..

Practice point:   A non-resident's consent to jurisdiction for issues arising out of the purchase agreement does not constitute a consent with respect to plaintiff's claims for a commission.

Case in point:  Ausch v. Sutton, NY Slip Op 04813 (2d Dep't June 14, 2017)

Here is the decision.

Tomorrow's issue:  CPLR 205(a).

Friday, June 23, 2017

Failure to state a claim as an affirmative defense.

Practice point:  The Appellate Division stated the the motion court was not free to dismiss the affirmative defense of failure to state a claim, as failure to state a claim may be raised at any time, even if not pleaded, pursuant to CPLR 3211[e], and, therefore, is mere surplusage as an affirmative defense.

Case:  San-Dar Assoc. v. Fried, NY Slip Op 04884 (1st Dep't June 15, 2017)

Here is the decision.

Monday's issue:  A non-resident's consent to jurisdiction.

Thursday, June 22, 2017

Hearsay on a summary judgment motion.

Practice point:  While hearsay may be considered in opposition to a motion for summary judgment, it is insufficient to raise a triable issue of fact where it is the only evidence upon which the opposition to the motion is predicated.

Case:  Alpha Invs., LLC v. McGoldrick, NY Slip Op 04812 (2d Dep't June 14, 2017)

Here is the decision.

Tomorrow's issue:  Failure to state a claim as an affirmative defense.