Contracts.

Practice point: Where the written agreement does not cover the dispute, plaintiff may present evidence to prove an alleged oral agreement, as such proof would not contradict or modify the terms.

Practitioners should note that where the written agreement does not cover the dispute, or there is a question about the existence of a contract, plaintiff may proceed on a theory of quasi-contract as well as breach of contract, and will not be required to elect a remedy.

Case: Elbroji v. 22 E. 54th St. Rest. Corp., NY Slip Op 08779 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Contracts.

Practice point: Where the written agreement does not cover the dispute, plaintiff may present evidence to prove an alleged oral agreement, as such proof would not contradict or modify the terms.

Practitioners should note that where the written agreement does not cover the dispute, or there is a question about the existence of a contract, plaintiff may proceed on a theory of quasi-contract as well as breach of contract, and will not be required to elect a remedy.

Case: Elbroji v. 22 E. 54th St. Rest. Corp., NY Slip Op 08779 (2d Dept. 2009)

The opinion is here.


Tomorrow’s issue: Labor Law.

Legal malpractice.

Practice point: To recover damages, plaintiff must establish that the attorney failed to exercise the skill and knowledge commonly possessed by a member of the profession, and that the breach of this duty proximately caused actual and ascertainable damages.

Practitioners should note that causation requires a showing that plaintiff would have prevailed in the underlying action or would not have incurred damages but for the attorney's negligence.

Case: Ali v. Fink, NY Slip Op 08766 (2d Dept. 2009)

The opinion is here.

Monday's issue: Contracts.

Motion practice.

Practice point: It is within the sound discretion of the court to decide a motion for leave to voluntarily discontinue an action without prejudice, pursuant to CPLR 3217(b).

Practitioners should note that the motion should be granted in the absence of special circumstances, such as prejudice to a defendant's substantial right.

Case: Expedite Video Conferencing Servs., Inc. v. Botello, NY Slip Op 08781 (2d Dept. 2009)

The opinion is here.

Tomorrow's issue: Legal malpractice.

Torts.

Practice point: A landowner has a duty to maintain the premises in a reasonably safe condition.

Practitioners should note that there is no duty to warn or protect against an open and obvious condition which is not inherently dangerous.

Case: Bretts v. Lincoln Plaza Assoc., Inc., NY Slip Op 08771 (2d Dept. 2009)

The opinion is here.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Notice of motion to compel the turnover of personal property is served in the same way as a summons, or by registered or certified mail, return receipt requested, pursuant to CPLR 5225(a).

Practitioners should note that improper notice deprives the court of jurisdiction to hear the motion.

Case: Buckeye Retirement Co., LLC, Ltd. v. Quattrocchi, NY Slip Op 08576 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

School Law.

Practice point: In order to find that a school has breached its duty to supervise when one student is injured by another, a plaintiff must show that the school had sufficiently specific knowledge or notice of the dangerous conduct, such that it reasonably could have been anticipated.

Practitioners should note that notice of prior similar conduct is generally required because school personnel cannot reasonably be expected to guard against all of the spontaneous acts that take place among students daily.

Case: Andrew T. B. v. Brewster Cent. School Dist., NY Slip Op 08571 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Evidence.

Practice point: A police accident report is inadmissible if it was made by an officer who did not witness the accident and it contains the hearsay statements of plaintiff's decedent as to the ultimate issue of fact.

Practitioners should note that the officer's affidavit vouching for the report’s truth does not make the report admissible.

Case: Fay v. Vargas, NY Slip Op 08510 (1st Dept. 2009)

The opinion is here.

Monday’s issue: School Law.

Arbitration.

Practice point: When a replacement arbitrator makes an award based on a review of the record, petitioner is not denied due process.

Practitioners should note that when the replacement was assigned because petitioner issued threats to the original arbitrator, petitioner will not be given a de novo hearing.

Case: Matter of Smith v. New York City Dept. of Educ., NY Slip Op 08493 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Evidence.

Motion practice.

Practice point: CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar and not restored within one year has been abandoned.

Practitioners should note that the court retains discretion to grant a motion to restore a case to the trial calendar after the one-year period has expired.

Case: Kahgan v. Alwi, NY Slip Op 08183 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Arbitration.

Motion practice.

Practice point: When defendant files an answer only after the court denies the motion to dismiss for lack of personal jurisdiction, defendant does not waive that defense by asserting unrelated counterclaims.

Practitioners should note that affidavits may be used to preserve potentially meritorious claims, even if inartfully pleaded.

Case: Finkelstein Newman Ferrara LLP v. Manning, NY Slip Op 08470 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.