Conversion and fraud.

Practice point: There is conversion when a person intentionally, and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that other person's right of possession.

Students should note that, to sustain a claim for fraud, a plaintiff must plead material misrepresentation of a fact; knowledge of its falsity; an intent to induce reliance; justifiable reliance by the plaintiff; and damages.

The case is Demry v. Wind, NY Slip Op 02535 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is improper disposition of cremains.

Appellate practice.

Practice point: If the order did not decide a motion made upon notice, there is no right of appeal, pursuant to CPLR 5701(a)(2).

Students should note that the Appellate Division may deem the notice of appeal a motion for leave to appeal, pursuant to CPLR 5701(c), and grant the motion.

Grgurovic v. Controlled Combustion Co., NY Slip Op 02533 (1st Dept. 2011).

Here is the decision.

Monday's issue is conversion and fraud.

Tortious interference with a contract.

Practice point: Plaintiff must allege the existence of a valid contract with a third party; defendant's knowledge of the contract; defendant's intentional procurement of the third party's breach, without justification; and damages.

Students should note that plaintiff must specifically allege that, but for defendant's conduct, there would have been no breach. 

Ferrandino & Son, Inc. v. Wheaton Bldrs., Inc., LLC, NY Slip Op 02346 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is appellate practice.

Service of process.

Practice point: The affidavit of plaintiff's process server constitutes prima facie evidence of valid service of the summons and complaint, pursuant to CPLR 308(1).

Students should note that defendant's bare and unsubstantiated denial of service is insufficient to rebut the presumption of proper service.

Citimortgage, Inc. v. Phillips, NY Slip Op 02343 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is tortious interference with a contract.

Setting aside a verdict.

Practice point: Pursuant to CPLR 4404(a), the motion may allege errors in the trial court's evidentiary rulings, mistakes in the charge, misconduct, newly discovered evidence, and surprise.

Students should note that the court must consider whether substantial justice has been done, and then rely on common sense, experience, and fairness.

The case is Allen v. Uh, NY Slip Op 02338 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is service of process.

Labor Law.

Practice point: A plaintiff is not entitled to the protection of § 241(6) unless the injury happens during construction, excavation or demolition.

Students should note that if the injury happens in the course of remedying a condition plaintiff was charged to amelirorate, there are no § 200 or common-law negligence causes of action..

The case is Montalvo v. New York & Presbyt. Hosp., NY Slip Op 02060 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is setting aside a verdict.

Attorney-client relationships.

Practice point: When, by letter, the attorneys unequivocally inform the client that they will not proceed with client's case, the relationship is severed.

Students should note that, at this point, the continuous representation doctrine no longer applies, and the toll of the statute of limitations for a malpractice claim is lifted.

The case is Riley v. Segan, Nemerov & Singer, P.C., NY Slip Op 02048 (1st Dept. 2011).

Here is the decision.

Monday's issue is Labor Law.

Real estate contracts.

Practice point: When it is expressly stated that time is of the essence, the parties are obligated to strictly comply with the contract terms.

Students should note that, once the seller is in breach, the buyer has no further duty to entertain the seller's proposed alternate closing dates.

The case is Champion v. Blue Water Advisors, Inc., NY Slip Op 02045 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is attorney-client relationships.

Statute of limitations.

Practice point: Generally, a cause of action alleging medical malpractice accrues on the date of the alleged wrongful act or omission, and the statute of limitations begins running on that date.

Students should note that when the patient is undergoing a continuous course of treatment for the same condition or complaint that gives rise to the lawsuit, the statute of limitations will not begin to run until the end of the course of treatment.

The case is Udell v. Naghavi, NY Slip Op 01997 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is real estate contracts.

Labor Law.

Practice point: A construction manager is generally not considered a contractor responsible for worker safety, pursuant to §§ 200 and 241(6). However, he may become responsible if he has been delegated the authority and duties of a general contractor, or if he functions as an agent of the property owner.

Students should note that a party is deemed to be an agent of an owner or general contractor when it has supervisory control and authority over the work being done.

The case is Rodriguez v. JMB Architecture, LLC, NY Slip Op 01990 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is statute of limitations.

Labor Law.

Practice point:  Because defendant-general contractor admitted that there was no place to which a harness could have been tied, defendants did not raise the inference that plaintiff's failure to use a safety harness was the sole proximate cause of his injury.

Students should note that the affirmation of defendants' attorney, asserting that there were places to which a safety harness could have been tied, carries no evidentiary weight.

The case is Berrios v. 735 Ave. of the Ams., LLC, NY Slip Op 01940 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is Labor Law.