Practice point: Mere lack of diligence in furnishing requested materials is not a ground for striking a pleading.
Students should note that monetary sanctions may result from defendant's repeated delays and repeated failure to comply with discovery orders.
Case: Elias v. City of New York, NY Slip Op 02013 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 25, 2010
March 24, 2010
Motion practice.
Practice point: Defendant fails to allege a counterclaim for breach of contract if he does not identify the terms of the agreement.
Students should note that a counterclaim cannot sound in legal malpractice if the litigation steps plaintiff took were among several reasonable options.
Case: Sklover & Donath, LLC v. Eber-Schmid, NY Slip Op 02002 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that a counterclaim cannot sound in legal malpractice if the litigation steps plaintiff took were among several reasonable options.
Case: Sklover & Donath, LLC v. Eber-Schmid, NY Slip Op 02002 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 23, 2010
Contracts.
Practice point: The agreement should be read as a whole to ensure that undue emphasis is not placed on particular words and phrases.
Students should note that extrinsic evidence may not be considered unless it is determined as a matter of law that the agreement is ambiguous.
Case: Burlington Ins. Co. v. Utica First Ins. Co., NY Slip Op 01906 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that extrinsic evidence may not be considered unless it is determined as a matter of law that the agreement is ambiguous.
Case: Burlington Ins. Co. v. Utica First Ins. Co., NY Slip Op 01906 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 22, 2010
Motion practice.
Practice point: A defendant may move to change the place of trial within fifteen days after service, unless plaintiff consents to the change of venue within five days of service, pursuant to CPLR 511[b].
Students should note that a default judgment should not be entered if a delay in answering is brief and plaintiff alleges no prejudice.
Case: Siwek v. Phillips, NY Slip Op 01848 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Contracts.
Students should note that a default judgment should not be entered if a delay in answering is brief and plaintiff alleges no prejudice.
Case: Siwek v. Phillips, NY Slip Op 01848 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Contracts.
March 19, 2010
Motion practice.
Practice point: Under an exception to the statute of frauds, the promise need not be in writing if it is supported by new consideration, and the parties intend the promisor to be a principal debtor and primarily liable.
Students should note that, under the doctrine of tortious misrepresentation, if a person knowingly and falsely claims to have power to bind another, he is liable for losses resulting from justifiable reliance on the claim.
Case: DePetris & Bachrach, LLP v. Srour, NY Slip Op 01840 (1st Dept. 2010)
The opinion is here.
Monday's issue: Motion practice.
Students should note that, under the doctrine of tortious misrepresentation, if a person knowingly and falsely claims to have power to bind another, he is liable for losses resulting from justifiable reliance on the claim.
Case: DePetris & Bachrach, LLP v. Srour, NY Slip Op 01840 (1st Dept. 2010)
The opinion is here.
Monday's issue: Motion practice.
March 18, 2010
Labor Law.
Practice point: To recover under § 240(1), a plaintiff must demonstrate that a statutory violation proximately caused the injury.
Students should note that the statute protects against a gravity-related hazard that requires a safety device.
Case: Sinkaus v. Regional Scaffolding & Hoisting Co., Inc., NY Slip Op 01885 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that the statute protects against a gravity-related hazard that requires a safety device.
Case: Sinkaus v. Regional Scaffolding & Hoisting Co., Inc., NY Slip Op 01885 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 17, 2010
Motion practice.
Practice point: The complaint is a necessary part of the record on a summary judgment motion.
Students should note that, pursuant to CPLR 3213[b], the motion must be supported by copies of the pleadings.
Case: Williams v. Nelson, NY Slip Op 01883 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Labor Law.
Students should note that, pursuant to CPLR 3213[b], the motion must be supported by copies of the pleadings.
Case: Williams v. Nelson, NY Slip Op 01883 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Labor Law.
March 16, 2010
Motion practice.
Practice point: Denying receipt of the summons and complaint does not rebut the presumption of proper service created by an affidavit of service.
Students should note that an insurance carrier's delay in defending does not establish a reasonable excuse for a default.
Case: Gartner v. Unified Windows, Doors and Siding, Inc., NY Slip Op 01759 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that an insurance carrier's delay in defending does not establish a reasonable excuse for a default.
Case: Gartner v. Unified Windows, Doors and Siding, Inc., NY Slip Op 01759 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 15, 2010
Motion practice.
Practice point: Defendant waives the physician-patient privilege by asserting the affirmative defense of unanticipated medical emergency, pursuant to CPLR 3121[a] and CPLR 4504[a].
Students should note that a motion to strike the answer for failure to comply with discovery demands will be denied if plaintiff does not demonstrate the relevance of the medical records.
Case: Rivera v. New York City Transit Authority, NY Slip Op 01737 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that a motion to strike the answer for failure to comply with discovery demands will be denied if plaintiff does not demonstrate the relevance of the medical records.
Case: Rivera v. New York City Transit Authority, NY Slip Op 01737 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 12, 2010
Motion practice.
Practice point: There is no appeal from a motion to reargue.
Students should note that the motion should be based on newly discovered facts, pursuant to CPLR 2221[e], but courts may use their discretion in the interest of justice.
Case: Sirico v. F.G.G. Prods., Inc., NY Slip Op 01733 (1st Dept. 2010)
The opinion is here.
Monday's issue: Motion practice
Students should note that the motion should be based on newly discovered facts, pursuant to CPLR 2221[e], but courts may use their discretion in the interest of justice.
Case: Sirico v. F.G.G. Prods., Inc., NY Slip Op 01733 (1st Dept. 2010)
The opinion is here.
Monday's issue: Motion practice
March 11, 2010
Contracts.
Practice point: When parties set down their agreement in a clear, complete document, the writing will be enforced according to its terms.
Students should note that evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing.
Case: Gladstein v. Martorella, NY Slip Op 01732 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing.
Case: Gladstein v. Martorella, NY Slip Op 01732 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
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