Notice of claim.

Practice point:  The notice is not a condition precedent to a cause of action, asserted pursuant to 42 USC § 1983, which seeks to recover damages premised on violations of federal civil or constitutional rights under color of state law.

Students should note that timely service of the notice is a condition precedent to a lawsuit sounding in tort and commenced against a municipality.

Rowe v. NYCPD, NY Slip Op 05477 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is examinations before trial.

Happy July Fourth.

Today is a court holiday, and so there is no post on NEW YORK LAW NOTES.

If you are a Veteran, thank you for your service in the name of our freedom, and if you have a family member in service, thank you for your sacrifice.

Tomorrow's issue is notice of claim.

Vehicle and Traffic Law.

Practice point: Pursuant to § 388(1), the motor vehicle's owner is liable for the negligence of anyone who operates the vehicle with the owner's express or implied consent.

Students should note that there is a rebuttable presumption that the operator was driving the vehicle with the owner's consent.

Panteleon v. Amaya, NY Slip Op 05471 (2d Dept. 2011).

Here is the decision.

Tuesday's issue is notice of claim.

Dismissals.

Practice point: Pursuant to CPLR 3211(a)(4), an action might be dismissed based on another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same.

Students should note that the critical element is that both suits arise out of the same subject matter or the same series of alleged wrongs.

DAIJ, Inc. v. Roth, NY Slip Op 05446 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue is Vehicle and Traffic Law.

Reformation of a contract.

Practice point: For a party to be entitled to reformation on the ground of mutual mistake, it must be material, that, is, it must involve a fundamental assumption of the contract.

Students should note that a party need not establish that the parties entered into the contract because of the mistake, only that it vitally affects a fact or facts on the basis of which the parties contracted.

Asset Mgt & Capital Co., Inc. v. Nugent, NY Slip Op 05438 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue is dismissals.

In pari delicto.

Practice point: The doctrine bars a party that has been injured as a result of its own intentional wrongdoing from recovering from another party whose equal or lesser fault contributed to the loss.

Students should note that the doctrine mandates that the courts will not intercede to resolve a dispute between two wrongdoers.

Rosenbach v. Diversified Group, Inc., NY Slip Op 05345 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue is reformation of a contract.

Vacating a default.

Practice point: An affidavit of merit is required in support of the motion, pursuant to CPLR 5015(a)(1).

Students should note that if the motion is denied for want of the affidavit, a second motion cannot be made on the same grounds as the first.

47 Thames Realty, LLC v. Robinson, NY Slip Op 05225 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is in pari delicto.

Account stated.

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

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

Fleetwood Agency, Inc. v. Verde Elec. Corp., NY Slip Op 05224 (2d Dept. 2011).

Here is the decision.

Monday's issue is vacating a default.

Statute of frauds.

Practice point: A quantum meruit recovery is not precluded if there is a sufficient memorandum to evidence the fact that plaintiff employed defendant to render the alleged services.

Students should note that neither a nondescript "thank you" note nor a check designated as a gift qualifies.

At Last Naturals, Inc. v. Feiner, NY Slip Op 05211 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is account stated.

Contempt powers.

Practice point: Supreme Court is vested with authority to adjudicate a party in contempt, pursuant to Judiciary Law 752[A].

Students should note, however, that a party's resorting to a contempt motion on a routine discovery matter, absent application for a remedy under CPLR 3126, is improper.

Lopez v. New York City Transit Authority, NY Slip Op 05182 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is statute of frauds.

Student fights.

Practice point: The school has no duty to notify a parent about a fight between two students when the school has already affirmatively addressed the misconduct.

Students should note that the school normally has no duty of care to a student injured off school grounds.

Stephenson v. City of New York, NY Slip Op 05178 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is contempt powers.