Seeking a temporary injunction.

Practice point: A motion for a temporary injunction opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading.

Student note: However, this power does not extend to an evaluation of conflicting evidence, and so the motion court may not, on its own initiative, convert a motion for a preliminary injunction into one for summary judgment without giving adequate notice to the parties and affording them an opportunity to lay bare their proof.

Case: Grand Aerie of Fraternal Order of Eagles v. Mostrando, NY Slip Op 03139 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Mechanic’s liens.

Account stated.

Practice point: An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due. The agreement may be express, or it may be implied by the retention of a bill without objection for an unreasonable period of time and from the surrounding circumstances.

Student note: Whether a bill has been held without objection for a period of time sufficient to give rise to an inference of assent is ordinarily a question of fact, and becomes a question of law only in those cases where only one inference is rationally possible.

Case: Accent Collections, Inc. v. Cappelli Enters., Inc., NY Slip Op 03120 (2d Dept. 2012).

Here is the decision.

Monday’s issue:  Seeking a temporary injunction.

Tort actions against the City.

Practice point: A tort action against a municipality cannot be maintained unless a timely notice of claim is served, and the action is commenced within one year and 90 days after the happening of the event upon which the claim is based.

Student note: The court is without power to consider an application to file a late notice of claim after expiration of that limitations period.

Case: Turner v. City of New York, NY Slip Op 03107 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue:  Account stated.

Appeals from final and non-final judgments.

Practice point: Pursuant to CPLR 5501(a)(1), an appeal from a final judgment brings up for review any non-final judgment or order which necessarily affects the final judgment.

Student note: When an appeal from an intermediate order is perfected together with an appeal from a final judgment, the appeal from the intermediate order must be dismissed and any error alleged, to the extent that it affects the final judgment, may be reviewed upon the appeal from the final judgment.

Case: Retta v. 160 Water St. Assoc., L.P., NY Slip Op 03092 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Tort actions against the City.

Anticipatory breach.

Practice point: By definition an anticipatory breach cannot be committed by a party already in material breach of an executory contract. It is well settled that an anticipatory breach of a contract is one that occurs before performance by the breaching party is due.

Student note: The rationale behind the doctrine is that it gives the non-repudiating party an opportunity to treat a repudiation as an anticipatory breach without having to futilely tender performance or wait for the other party's time for performance to arrive.

Case: Kaplan v. Madison Park Group Owners, LLC, NY Slip Op 03086 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Appeals from final and non-final judgments.

Psychiatrist's malpractice.

Practice point:  For a psychiatrist to be held liable for malpractice based upon a decision made in connection with a patient's treatment or a decision to discharge a patient from a hospital, it must be shown that the treatment decisions represented something less than a professional medical determination, or that the psychiatrist's decisions were not the product of a careful evaluation.

Student note: A psychiatrist may not be held liable for a mere error in professional judgment.

Case: Ballek v. Aldana-Bernier, NY Slip Op 02823 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Anticipatory breach.

Injuries caused by a defective condition.

Practice point: The plaintiff must show that the landowner either created the defective condition, or had actual or constructive notice of the defect.

Student note: When a defendant-property owner lends allegedly dangerous or defective equipment to a worker who is injured during its use, the defendant moving for summary judgment must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition.

Case: Arredondo v. Valente, NY Slip Op 02821 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Psychiatrist’s malpractice.

Disqualifying a firm.

Practice point: The plaintiff sought to associate or merge with another law firm, one of which was the firm representing the defendant in this action. In discussions between the plaintiff and the firm, the plaintiff's principal allegedly disclosed certain information regarding, billing rates and the plaintiff's prior representation of the defendant's decedent. After the commencement of the instant action, the plaintiff learned that the firm was representing the defendant. The plaintiff moved to disqualify the firm, and the motion was granted.

Student note: The discussions between the plaintiff and the firm, which purportedly included matters at issue in the instant action, create the danger that confidences were disclosed, thus warranting the disqualification of the firm.

Case: Jacobs v. Parker, NY Slip Op 02818 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Injures caused by a defective condition.

Slips and falls.

Practice point: Evidence of an unremedied condition that recurred and caused prior accidents because it was not addressed can constitute constructive notice.

Student note: While strewn MetroCards constitute a recurrent condition, a court cannot impose a duty upon a municipal authority to alter its cleaning schedule or hire additional cleaners without a showing that the established scheduled is manifestly unreasonable. Where as here, a reasonable cleaning routine was established and followed, liability will not be imposed.

Case: Harrison v. New York City Tr. Auth., NY Slip Op 02753 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Disqualifying a firm.

Capacity to sue.

Practice point: Dismissal pursuant to Business Corporation Law § 1312(a), which requires the registration of a foreign corporation doing business in New York, is not jurisdictional, but, instead, affects the legal capacity to sue. Accordingly, a motion to dismiss for lack of compliance with Business Corporation Law § 1312(a) is properly brought pursuant to CPLR 3211(a)(3), not (a)(8).

Student note: The question of capacity to sue is conceptually distinct from the question of standing.

Case:  Digital Ctr. S.L. v. Apple Indus., Inc., NY Slip Op 02806 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Slips and falls.

Construing a lease.

Practice point: A proprietary lease is a valid contract that must be enforced according to its terms, and, in the interpretation of leases, the same rules of construction apply as are applicable to contracts generally.

Student note: The court found that, contrary to the co-op's arguments, none of the provisions upon which it relied supported a basis upon which it can recover, from the proceeds of the sale of the apartment, its costs for security services.

Case: Himmelberger v. 40-50 First Rd. Apts. Corp., NY Slip Op 02636 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Capacity to sue.