Preliminary injunctions.

Practice point: The mere existence of an issue of fact will not result in the denial of the motion.

Students should note that the motion requires a showing of likely success on the merits; irreparable harm; and a balance of the equities in movant's favor.

Arcamone-Makinano v. Britton Prop., Inc., NY Slip Op 02818 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is breach of fiduciary duty.

Bed bugs.

Practice point: A bug infestation is not a matter uniquely within a seller's knowledge, such that it requires disclosure by the seller. 

Students should note that if the contract specifically disclaims reliance on any representations as to the physical condition of the building, there is no claim arising from the seller's alleged misrepresentations that the building did not have a bedbug problem.

85-87 Pitt St., LLC v. 85-87 Pitt St. Realty Corp., NY Slip Op 02796 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is preliminary injunctions.

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.