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.