Attorney discipline.

Practice point: The federal felony of fraud by wire, in violation of 18 USC § 1343, has been held to be essentially similar to the New York felonies of grand larceny in the second degree, under Penal Law § 155.40, and scheme to defraud in the first degree, under Penal Law § 190.65.

Student note: By virtue of a felony conviction, the respondent was automatically disbarred and ceased to be an attorney, pursuant to Judiciary Law § 90(4)(a).

Case: Matter of Caputo, NY Slip Op 06262 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Employment discrimination.

Easements by prescription.

Practice point: An easement by prescription is generally demonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use of the property for the required period.

Student note: The standard of proof is clear and convincing.

Case: Vitiello v. Merwin, NY Slip Op 06260 (2d Dept. 2011).

Here is the decision.

Monday’s issue:  Attorney discipline

Building permits.

Practice point: A permit which is issued in contravention of zoning laws is invalid.

Student note:  Where the permit is issued either because of the applicant’s misrepresentation or the municipality’s mistake, it can be revoked.

Case: Wappingers Falls v. Tomlins, NY Slip Op 06259 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue:  Easements by prescription.

Settlement agreements.

Practice point: The agreement does not terminate the action unless there is an express stipulation of discontinuance, or an entry of judgment in accordance with the settlement terms.

Student note: Absent termination, the court retains its supervisory power over the action and may lend aid to a party who moves for enforcement.

Case: Palmieri v. Town of Babylon, NY Slip 06254 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Building permits.

Venue.

Practice point: A demand to change venue based on the designation of an improper county, pursuant to CPLR 510[1], must be served with the answer or before the answer is served.

Student note: Since defendant did not timely serve, he was not entitled to the change of venue as of right.

Case: Brash v. Richard, NY Slip Op 06210 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Settlement agreements.

Inter vivos gifts.

Practice point: The donor must intend to make an irrevocable present transfer of ownership, and there must be delivery and acceptance.

Student note: If the intention is to make a testamentary disposition, the gift is invalid unless made by will.

Case: Ross v. Ross Metals Corp., NY Slip Op 06224 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Venue.

Notice of claim.

Practice point: Service of the notice within 90 of the claim's accrual is a condition precedent to commencing a suit against a school district.

Student note: Plaintiff may not plead a theory of liability that was not included in the notice.

Case: O'Connor v. Huntington School District, NY Slip Op 06222 (2d Dept. 2011).

Here is the decision.

Listen here.

Monday's issue: Inter vivos gifts.

Third-party conduct.

Practice point: As a general rule, a defendant has no duty to control the conduct of third-parties.

Student note: There is no bright-line rule in New York as to whether a mental health care provider treating a patient on a voluntary basis owes a duty of care to the general public.

Case: Fox v. Marshall, NY Slip Op 06214 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Notice of claim.

Disbarment.

Practice point: A federal felony conviction will trigger automatic disbarment if there is an equivalent felony under New York law.

Student note: The standard is the essential similarity of the elements of the felonies.

Case: Matter of Starr, NY Slip Op 06193 (1st Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Third-party conduct.

Falls on ice.

Practice point: Defendant did not refute plaintiffs' contention that the dangerous condition existed, and, therefore, had to establish that it did not create the condition or have notice of it.

Student note: Defendant failed to meet its burden with respect to notice when it proffered no affidavit or testimony based on personal knowledge as to when its employees last inspected the sidewalk, or the sidewalk's condition before the accident.

Case: Spector v. Cushman & Wakefield, Inc., NY Slip Op 06189 (1st Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Disbarment.

Contracts.

Practice point: When plaintiff misnamed the corporate signatory, who had committed no wrongful conduct, the court will dismiss the action as against this defendant.

Student note: There is nothing inherently unconscionable about a nonreciprocal attorney's fee provision in a commercial contract.

Case: Lansco Corp. v. Kampeas, NY Slip Op 06188 (1st Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Falls on ice.