Happy Labor Day.

Because of the Court holiday, there is no post today.

Tomorrow's issue: Ethics.

Administrative Law.

Practice point: A petitioner objecting to an agency's acts must exhaust administrative remedies before commencing litigation.

Students should note that an exception is where the act is challenged as unconstitutional or beyond the agency's power.

Case: Pitts v. N.Y. City Off. of Comptroller, NY Slip Op 06422 (2d Dept. 2010)

Here is the opinion.

Tuesday's issue: Ethics.

Motion practice.

Practice point: The writ of prohibition is available only where there is a clear legal right, and only in those cases where a court acts or threatens to act in excess of its powers.

Students should note that it is not available to correct errors of substantive law or procedure, however grievous.

Case: Dowd v. Buchter, NY Slip Op 06419 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Administrative Law.

Motion practice.

Practice point: Ignorance of the notice of claim requirement is not a reasonable excuse for failure to timely serve.

Students should note that petitioner must establish that late notice would not be prejudicial, and that the City had actual knowledge of the essential facts within 90 days of the claim's accrual.

Case: Bush v. City of New York, NY Slip Op 06417 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Mental Hygiene Law.

Practice point: Involuntary admission for psychiatric treatment requires clear and convincing evidence that the patient poses a substantial threat of physical harm to himself or others.

Students should note that the hospital's director must forthwith notify Mental Hygiene Legal Services, and the patient is entitled to a hearing within five days of requesting it.

Case: Rueda v. Charmaine D., NY Slip Op 06393 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Courts will liberally allow persons to intervene in actions where they have a bona fide interest in an issue.

Students should note that distinctions between intervention as of right and discretionary intervention are not shaply applied.

Case: Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, NY Slip Op 06401 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Mental Hygiene Law.

Trial practice.

Practice point: The standard for determining if a jury verdict is contrary to the weight of the evidence is whether the evidence so favors the unsuccessful party that it could not have been reached on any fair interpretation.

Students should note that if the verdict can be reconciled with a reasonable interpretation of the evidence, the successful party is entitled to the presumption that the jury adopted that view.

Case: Courbertier v. Academy Bus, LLC, NY Slip Op 06289 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Labor Law.

Practice point: The purpose of § 240(1) is to protect workers not from routine risks but from the specific risks resulting from elevation differentials at the worksite.

Students should note that the statute covers necessary and incidental activities, even if the injury is sustained away from the site of the construction work.

Case: D'Alto v. 22-24 129th St., LLC, NY Slip Op 06291 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Trial practice.

Family Law.

Practice point: In order to modify a custody or visitation arrangement, there must be a showing of a change in circumstances requiring the modification to protect the best interests of the child.

Students should note that the standard for determining the child's best interests is the totality of the circumstances.

Case: Peralta v. Irrizary, NY Slip Op 06374 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Labor Law.

Torts.

Practice point: A cause of action sounding in abuse of process requires an unlawful interference with one's person or property.

Students should note that merely commencing a civil action, even with a malicious motive, is insufficient to make out the cause of action.

Case: Tenore v. Kantrowitz, Goldhamer & Graifman, P.C., NY Slip Op 06370 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Family Law.

Torts.

Practice point: A cause of action sounding in abuse of process requires an unlawful interference with one's person or property.

Students should note that merely commencing a civil action, even with a malicious motive, is insufficient to make out the cause of action.

Case: Tenore v. Kantrowitz, Goldhamer & Graifman, P.C., NY Slip Op 06370 (2d Dept. 2010)



Tomorrow's issue: Family Law.