Motion practice.

Practice point: An account stated is an agreement based on prior transactions with respect to the correctness of the account items and the balance due.

Students should note that the agreement may be implied from the retention of an account rendered, without objection, for an unreasonable period of time.

Case: Landau v. Weissman, NY Slip Op 07899 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Attorney-client relations.

Motion practice.

Practice point: A person whose conveyance or encumbrance is recorded after the filing of a notice of pendency is bound by all subsequent proceedings, as if he were a party, pursuant to CPLR 6501.

Students should note that, to cut off a prior lien, such as a mortgage, the purchaser or encumbrancer must have no knowledge of the outstanding lien and must win the race to the recording office.

Case: DLJ Capital Mortgage, Inc. v. Windsor, NY Slip Op 07886 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: To prevail on a motion for civil contempt, movant must demonstrate a clear and unequivocal mandate of the court, and prejudice of movant's rights.

Students should note that the mere act of disobedience, regardless of motive, can sustain the finding.

Case: Bais Yoel Ohel Feige v. Congregation Yetev Lev D'Satmar of Kiryas Joel, NY Slip Op 07875 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Labor Law.

Practice point: There is an exemption to liability for one and two-family homeowners who merely contract for the work and do not supervise it.

Students should note that the owner’s attendance at meetings regarding the work's progress does not rise to the level of supervision necessary to impose liability.

Case: Castellanos v. United Cerebral Palsy Assn. of Greater Suffolk, Inc., NY Slip Op 07714 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Labor Law.

Practice point: There is an exemption to liability for one and two-family homeowners who merely contract for the work and do not supervise it.

Students should note that the owner’s attendance at meetings regarding the work's progress does not rise to the level of supervision necessary to impose liability.

Case: Castellanos v. United Cerebral Palsy Assn. of Greater Suffolk, Inc., NY Slip Op 07714 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Contracts.

Practice point: Implicit in all agreements is a covenant of good faith and fair dealing.

Students should note that there is a breach when a party acts in a way that deprives the other of a benefit of the agreement.

Case: Atlas El. Corp. v. United El. Group, Inc., NY Slip Op 07699 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Labor Law.

Court holiday.

The courts are closed today, and so there is no post.

To all Veterans, thank you for your service, and, if you have a family member in service today, thank you for your sacrifice.

Tomorrow's issue: Contracts.

Motion practice.

Practice point: An unlicensed contractor cannot recover damages based either on breach of contract or quantum meruit.

Students should note that a home improvement contractor must plead possession of a valid license in order to commence an action to foreclose a mechanic's lien.

Case: Quick Start Constr. Corp. v. Staiger, NY Slip Op 07731 (2d Dept. 2010)

Here is the decision.

Friday's issue: Contracts.

Torts.

Practice point: To establish a building owner’s liability for an elevator-related injury, a plaintiff must establish that there was a defect of which the owner had actual or constructive notice.

Students should note that, if the owner hires an elevator maintenance company, the owner can be liable if it has notice of a defect and does not notify the elevator company.

Case: Cilinger v. Arditi Realty Corp., NY Slip Op 07715 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: On an appeal from a judgment entered after a nonjury trial, the Appellate Division may render the judgment it finds is warranted by the facts.

Students should note that, in a close case, the Court will take into account the fact that the trial judge had the advantage of seeing the witnesses.

Case: Bryant v. State of New York, NY Slip Op 07710 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Torts.

Practice point: For there to be strict liability for harm caused by a domestic animal, the owner must have known, or should have known, of the animal's vicious propensities.

Students should note that the violation of a local leash law is only evidence of negligence.

Case: Wright v. Fiore, NY Slip Op 07531 (2d Dept. 2010)

Here is the decision.

Monday's issue: Motion practice.