Practice point: Filing a police accident report with the New York City Department of Transportation does not constitute notice of claim to the City.
Practitioners should note that law office failure, standing alone, is insufficient to justify serving an unauthorized late notice of claim five months after the expiration of the 90-day statutory period of General Municipal Law § 50-e.
Case: Gobardhan v. City of New York, NY Slip Op 05961 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
August 11, 2009
August 10, 2009
Contracts.
Practice point: If a contract is not signed by the party to be charged with its enforcement, it is void as against that party, pursuant to the statute of frauds.
Practitioners should note that to prove an enforceable oral contract under the doctrine of part performance, there must be an act that is unequivocally referable to the alleged contract.
Case: Singh v. Kur, NY Slip Op 05957 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Notice of claim.
Practitioners should note that to prove an enforceable oral contract under the doctrine of part performance, there must be an act that is unequivocally referable to the alleged contract.
Case: Singh v. Kur, NY Slip Op 05957 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Notice of claim.
August 7, 2009
Motion practice.
Practice point: In an action brought by an out-of-state resident, defendant may move for an order directing plaintiff to post security during the pendency of the action so that defendant, if successful, will be able to collect its costs, pursuant to CPLR 8501[a].
Practitioners should note that, in counties outside of the City of New York, the statutory amount is $250, pursuant to CPLR 8503.
Case: Halloway v. KRNH, Inc., NY Slip Op 06003 (2d Dept. 2009)
The opinion is here.
Monday’s issue: Contracts.
Practitioners should note that, in counties outside of the City of New York, the statutory amount is $250, pursuant to CPLR 8503.
Case: Halloway v. KRNH, Inc., NY Slip Op 06003 (2d Dept. 2009)
The opinion is here.
Monday’s issue: Contracts.
August 6, 2009
Legal malpractice.
Practice point: To support the cause of action, the factual allegations must establish the necessary element of causation, namely, that "but for" the alleged acts or omissions, plaintiff would not have incurred any damages.
Practitioners should note that the mere failure to disclose malpractice does not give rise to a cause of action alleging fraud or deceit, apart from the underlying malpractice cause of action.
Case: Reichenbaum v. Cilmi, NY Slip Op 05954 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
Practitioners should note that the mere failure to disclose malpractice does not give rise to a cause of action alleging fraud or deceit, apart from the underlying malpractice cause of action.
Case: Reichenbaum v. Cilmi, NY Slip Op 05954 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
August 5, 2009
Motion practice.
Practice point: A motion for leave to renew must be based on new facts that would change the prior determination, pursuant to CPLR 221[e][2]), and must include a reasonable justification for the failure to present the facts on the prior motion, pursuant to CPLR 2221[e][3].
Practitioners should note that a motion to reargue is within the sound discretion of the court, and may be granted on a showing that the court overlooked or misapprehended the facts or law, or otherwise mistakenly arrived at its earlier decision.
Case: Barnett v. Smith, NY Slip Op 05939 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Legal malpractice.
Practitioners should note that a motion to reargue is within the sound discretion of the court, and may be granted on a showing that the court overlooked or misapprehended the facts or law, or otherwise mistakenly arrived at its earlier decision.
Case: Barnett v. Smith, NY Slip Op 05939 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Legal malpractice.
August 4, 2009
Motion practice.
Practice point: An order that was issued sua sponte is not appealable as of right.
Practitioners should note that a motion is a request for an order, pursuant to CPLR 2211, and a letter simply requesting a telephone conference with the court does not serve as a notice of motion.
Case: Reyes v. Sequeira, NY Slip Op 05986 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
Practitioners should note that a motion is a request for an order, pursuant to CPLR 2211, and a letter simply requesting a telephone conference with the court does not serve as a notice of motion.
Case: Reyes v. Sequeira, NY Slip Op 05986 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
August 3, 2009
Real property.
Practice point: A contract for sale is void unless it is in writing and subscribed by the party to be charged or a lawful agent, pursuant to General Obligations Law § 5-703(2).
Practitioners should note that an agent’s apparent authority, if unwritten, does not satisfy the statute of frauds.
Case: Leist v. Tugendhaft, NY Slip Op 05950 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
Practitioners should note that an agent’s apparent authority, if unwritten, does not satisfy the statute of frauds.
Case: Leist v. Tugendhaft, NY Slip Op 05950 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
July 31, 2009
Duty of care.
Practice point: Emotional harm is compensable in the absence of physical injury, but only where the injury is a direct result of the alleged breach of duty.
Practitioners should note that the claim must possess some guarantee of genuineness.
Case: Karin K. v. Four Winds Hospital, NY Slip Op 05947 (2d Dept. 2009)
The opinion is here.
Monday’s issue: Real property.
Practitioners should note that the claim must possess some guarantee of genuineness.
Case: Karin K. v. Four Winds Hospital, NY Slip Op 05947 (2d Dept. 2009)
The opinion is here.
Monday’s issue: Real property.
July 30, 2009
Defamation.
Practice point: Pursuant to CPLR 3016(a), the complaint must set forth the particular words complained of.
Practitioners should note that compliance with the statute is strictly enforced.
Case: Horbul v. Mercury Ins. Group, NY Slip Op 05947 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Duty of care.
Practitioners should note that compliance with the statute is strictly enforced.
Case: Horbul v. Mercury Ins. Group, NY Slip Op 05947 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Duty of care.
July 29, 2009
Stipulations of settlement.
Practice point: A party will not be relieved from the stipulation absent fraud, mistake, collusion or accident.
Practitioners should note that the party seeking to vacate the stipulation must do so with reasonable promptness under the circumstances.
Case: Charlop v. A.O. Smith Water Prods., NY Slip Op 05911 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Defamation.
Practitioners should note that the party seeking to vacate the stipulation must do so with reasonable promptness under the circumstances.
Case: Charlop v. A.O. Smith Water Prods., NY Slip Op 05911 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Defamation.
July 28, 2009
Damages.
Practice point: Damages for breach of contract are ordinarily ascertained as of the date of the breach, not the date of trial.
Practitioners should note that a contract is not breached until the time set for performance has expired.
Case: Cole v. Macklowe, NY Slip Op 05907 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Stipulations of settlement.
Practitioners should note that a contract is not breached until the time set for performance has expired.
Case: Cole v. Macklowe, NY Slip Op 05907 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Stipulations of settlement.
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