Motion practice.

Practice point: In moving to dismiss pursuant to CPLR 3211(a)(5), defendant must establish, prima facie, that the time in which to commence the action has passed.

Students should note that the time is computed from the accrual of the cause of action to the interposition of the claim, pursuant to CPLR 203[a].

Case: Minskoff Grant Realty & Mgt. Corp. v. 211 Mgr. Corp., NY Slip Op 02108 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Contracts.

Motion practice.

Practice point: The fact that plaintiff was the only witness to the workplace accident does not preclude granting summary judgment in his favor.

Students should note that mere speculation is insufficient to defeat summary judgment.

Case:McCaffery v. Wright & Co. Constr.,Inc., NY Slip Op 02107 (2d Dept. 2010)

The opinion is here.

Monday's issue: Motion practice.

Motion practice.

Practice point: The court cannot convert a CPLR 3211 motion to dismiss into a CPLR 3212 motion for summary judgment.

Students should note that if plaintiff asserts a Labor Law § 740 cause of action, he waives any other cause of action based on the alleged retaliation.

Case: Garner v. China Natural Gas, Inc., NY Slip Op 02095 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Municipalities Law.

Practice point: Generally, the municipality is liabile for injuries resulting from negligent maintenance of a public sidewalk, or from a defective condition on the sidewalk.

Students should note that there is an exception where defendant created the defect.

Case: Elkman v. Consolidated Edison of N.Y., NY Slip Op 02088 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Plaintiff's failure to plead that the fee dispute was not covered by the Fee Dispute Resolution Program, pursuant to 22 NYCRR 136.1[b][2],[6], is not a jurisdictional defect precluding service of an amended complaint.

Students should note that an amended complaint supersedes the original, which is without legal effect.

Case: Nimkoff Rosenfeld & Schechter, LLP v. O'Flaherty, NY Slip Op 02067 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Municipalities Law.

Torts.

Practice point: A complaint sounding in defamation must allege the spoken or published words.

Students should note that the words need not be set in quotation marks.

Case: Moreira-Brown v. City of New York, NY Slip Op 02063 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: When served with a 90-day demand, plaintiff must seek an extension to comply, move to vacate the notice, or file a note of issue.

Students should note that law office failure is not a reasonable excuse for the failure to file.

Case: Cadichon v. Facelle, NY Slip Op 02058 (1st Dept. 2010)

The opinion is here.

Monday's issue: Torts.

Motion practice.

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.

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.

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.

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.