Municipalities Law.

Practice point: A § 50-h examination is a condition precedent to bringing an action against a municipality, and noncompliance is ground for dismissal.

Practitioners should note that failure to submit to the examination may be excused in exceptional circumstances, such as extreme physical or psychological incapacity.

Case: Steenbuck v. Sklarow, NY Slip 04890 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Service of process.

There is another instructive case here.

Motion practice.

Practice point: If service of process has been improper, any resulting default judgment is a nullity.

Practitioners should that that the fact that defendant had actual notice of the suit, and no meritorious defense, does not require a different result.

Case: Ruffin v. Lion Corp., NY Slip Op 04883 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

There is another instructive case here.

Legal malpractice.

Practice point: The absence of proximate cause requires dismissal of a legal malpractice action regardless of the attorney’s negligence.

Practitioners should note that an attorney may not recover fees for legal services performed in a negligent manner even where that negligence is not a proximate cause of client's injury.

Case: Kluczka v. Lecci, NY Slip Op 04867 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

Labor Law.

Practice point: For the purposes of § 240(1) liability, a fire escape could be the functional equivalent of a scaffold.

Practitioners should note that the fact that the fire escape is a permanent structure is not determinative.

Case: Gomez v. City of New York, NY Slip Op 04759 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

There is another instructive case here.

Long-arm jurisdiction.

Practice point: Defendant's negotiating the potential purchase of an automobile by email and telephone, which was initiated by plaintiff after seeing the car on defendant's website, does not constitute transacting business in New York.

Practitioners should note that, since the car was to be picked up in Texas, there was no contract to supply goods or services in New York. Defendant's website, which described available cars and featured an email link but did not let a customer purchase a car, was not a projection of defendant into New York.

Case: Arouh v. Budget Leasing, Inc., NY Slip Op 04751 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

There is another instructive case here.

Discovery.

Practice point: Full disclosure is required of everything material and necessary to the defense of an action, pursuant to CPLR 3101[a], which means that there must be disclosure of any facts bearing on the controversy.

Practitioners should note that, in a defamation action, defendant is entitled to discovery to establish the defense of truth to plaintiff's claims, and to defend against plaintiff's assertion of damage to his reputation.

Case: Rivera v. NYP Holdings, Inc., NY Slip 04706 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Long-arm jurisdiction.

There is another instructive case here.

Attorney-client relationships.

Practice point: While a plaintiff's perception, standing alone, does not create an attorney-client relationship, a formal retainer agreement is not imperative.

Practitioners should note that, in order to establish the relationship, there must be an explicit undertaking to perform a specific task.

Case: Terio v. Spodek, NY Slip 04412 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Discovery.

There is another instructive case here.

Motion practice.

Practice point: To avoid dismissal for failure to timely serve a complaint which has been demanded, pursuant to CPLR 3012(b), plaintiff must demonstrate a reasonable excuse for the delay and a meritorious cause of action.

Practitioners should note that until the attorney of record withdraws or is fired, as prescribed by CPLR 321, the attorney’s authority for the client as to adverse parties continues unabated.

Case: Splinters, Inc. v. Greenfield, NY Slip Op 04411 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Attorney-client relationships.

There is another instructive case here.

Trespass.

Practice point: Entering onto another’s property, without permission, even if innocently or by mistake, is a trespass.

Practitioners should note that nominal damages are presumed even where the property owner has suffered no actual injury.

Case: Hill v. Raziano, NY Slip Op 04382 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

Motion practice.

Practice point: In order to vacate a default in opposing plaintiff's motion to strike the answer, pursuant to CPLR 3126, defendant must demonstrate a reasonable excuse for the default and a meritorious defense to both the motion and the action, pursuant to CPLR 5015[a][1].

Practitioners should note that the mere denial of receipt is insufficient to rebut the proof that the motions papers were properly mailed, and the presumption of receipt.

Case: Caprio v. 1025 Manhattan Ave. Corp., NY Slip Op 04367 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Trespass.

There is another instructive case here.

Motion practice.

Practice point: An order striking a note of issue pending the completion of discovery is not the equivalent of an order marking the action off the calendar pursuant to CPLR 3404.

Practitioners should note that the action will be restored to the trial calendar when plaintiff files a new note of issue, which does not require the Court’s prior permission.

Case: Lane v. New York City Housing Authority, NY Slip Op 04203 (2d Dept. 2009).

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.