Damages.

Practice point: Avoiding liquated damages requires a showing that the amount fixed is plainly or grossly disproportionate to the probable loss.

Students should note that the proper measure of the damages for trespass is the gain the trespasser has derived from its wrongful conduct.

Moskowitz v. Pavarini McGovern LLC, NY Slip Op 02787 (1st Dept. 2011).

Here is the decision.

Monday's issue is bed bugs.

Striking an answer.

Practice point: Absent a showing that defendant's failure to comply with discovery obligations was willful or in bad faith, the court cannot strike defendant's answer.

Students should note that, unless there has been a motion to compel discovery, a CPLR 3216 motion to strike is premature.

W&W Glass, LLC v. 1113 York Ave. Realty Co. LLC, NY Slip Op 02786 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is damages.

Labor Law.

Practice point: § 240(1) imposes a nondelegable duty on owners, even when the job is performed by a contractor the owner did not hire and of which it was unaware, and, therefore, which it did not supervise or control.

Students should note that defendant will not be liable under common-law negligence or § 200 if the accident was not caused by a dangerous condition of which defendant had actual or constructive notice.

Bruce v. 182 Main St. Realty Corp., NY Slip Op 02785 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is striking an answer.

Improper disposition of cremains.

Practice point: Losing, or improperly dealing with, a decedent's remains gives rise to a cause of action by the next of kin.

Students should note that merely causing doubt as to whether particular ashes are those of a plaintiff's loved one, without more, is not actionable.

The case is Bailey v. Benta's Funeral Home, Inc., NY Slip Op 02537 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is Labor Law.

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.