Motion practice.

Practice point: On a motion to dismiss on the ground that the action is time-barred, pursuant to CPLR 3211(a)(5), defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired.

Practitioners should note that, in order to sustain this burden, defendant must establish when the cause of action accrued.

Case: Cottone v. Selective Surfaces, Inc., NY Slip Op 09605 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: In seeking to restore a case more than one year after it has been dismissed pursuant to CPLR 3404, plaintiff must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to defendants.

Practitioners should note that plaintiff must satisfy all four elements before the dismissal can be vacated and the case restored.

Case: Bornstein v. Clearview Props., Inc., NY Slip Op 09602 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Contracts.

Practice point: While a contract for personal services is terminated by the servant’s death, a sales contract is not terminated by the buyer’s death.

Practitioners should note that where performance is possible, albeit unprofitable, the legal excuse of impossibility is not available.

Case: Warner v. Kaplan, NY Slip Op 09169 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: To prevail on a claim for fraudulent inducement, plaintiff must establish the intentional misrepresentation of a material fact, justifiable reliance, and a resulting injury.

Practitioners should note that plaintiff cannot establish the justifiable reliance element without having used the available means of verification.

Case: Ventur Group, LLC v. Finnerty, NY Slip Op 09544 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Employment Law.

Practice point: If there is an employment agreement which identifies plaintiff's title, salary, estimated start date, vacation days, and benefits, parol evidence is inadmissible to vary its terms.

Practitioners should note that since the agreement controls, plaintiff may not recover under a quasi-contractual theory.

Case: Johnson v. Stanfield Capital Partners, LLC, NY Slip Op 09534 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: Standing alone, a business relationship with a New York entity is not enough for personal jurisdiction.

Practitioners should note that the investment of money in New York is not a form of doing business for the purpose of CPLR § 301.

Case: Arroyo v. Mountain School, NY Slip Op 09509 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: On a 3211 motion to dismiss for failure to state a cause of action, the court must accept the alleged facts as true, give plaintiff the benefit of every inference, and determine only whether the allegations fit any cognizable legal theory.

Practitioners should note that allegations which are flatly contradicted by the record are not presumed to be true and, if documentary evidence disproves an essential allegation, dismissal is warranted.

Case: Deutsche Bank Natl. Trust Co. v. Sinclair, NY Slip Op 09419 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Happy New Year.

Best wishes for a safe and happy holiday weekend, and a wonderful 2010.

Thank you for your support throughout the year just past.

The Courts reopen on Monday, and we will be posting a new case.

Labor Law.

Practice point: There is a statutory duty to protect workers engaged in, among other things, the repair of a building or structure, pursuant to § 240(1).

Practitioners should note that routine maintenance in order to prevent a malfunction is not a covered activity.

Case: Santiago v. Fred-Doug 117, L.L.C., NY Slip Op 09369 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: In a medical malpractice action, service of the summons and complaint must be accompanied by the notice required by CPLR 3406, and by an attorney's certificate of merit, pursuant to CPLR 3012-a.

Practitioners should note that the court may extend the time to file the notice, upon the showing of good cause, pursuant to CPLR 2004.

Case: Grad v. Hafliger, NY Slip Op 09297 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Motion practice.

Practice point: CPLR 3216 authorizes, but does not require, dismissal of an action based on plaintiff's unreasonable neglect to proceed.

Practitioners should note that dismissal is prohibited if plaintiff shows a justifiable excuse for the delay and merit to the action.

Case: Espinoza v. 373-381 Park Ave. S., LLC, NY Slip Op 09288 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.