Moot questions.

Practice point:  Courts may not pass on academic, hypothetical, or otherwise abstract questions that have no practical effect on the parties.

Student note:  As a matter of jurisdiction, a court's power to declare the law derives from, and is limited to, determining issues relating to persons who are rightly parties in a particular case.

Berger v. Prospect Park Residence, LLC, NY Slip Op 08110 (2d Dep't November 28, 2018)

Here is the decision.

Service of process.

Practice point:  An affidavit of service is prima facie evidence that the defendant was properly served with the summons and complaint, pursuant to CPLR 308(2).  In order to rebut the prima facie showing, the defendant must submit a sworn, nonconclusory denial of service, or swear to specific facts to rebut the statements in the process server's affidavit.

Student note:  A defendant's mere assertion that he was never served is insufficient to rebut the presumption  of proper service.

JP Morgan Chase Bank v. Dennis, NY Slip Op 08070 (1st Dep't November 27, 2018)

Here is the decision.

Expert opinons.

Practice point:  The opinion is without probative value if it is based on purported facts that are flatly contradicted by the evidence of record.

Holmes v. New York City Tr. Auth., NY Slip Op 08069 (1st Dep't November 27, 2018)

Here is the decision

Immunity from service of process.

Practice point:  Nondomiciliaries are immune from civil process when they voluntarily appear in New York to participate in any legal proceeding.

Student note: For immunity to attach, there must be no available means of acquiring jurisdiction over the person other than personal service in New York.

Sandella v. Hill, NY Slip Op 08051 (2d Dep't November 21, 2018)

Here is the decision.

Motions to consolidate.

Practice point:  The motion will be granted where the actions arise from the same transaction, concern the same parties, and involve common questions of law and fact.

Student note:  Consolidation is appropriate where it will avoid unnecessary duplication of trials; save unnecessary costs and expense; and prevent any injustice which would result from divergent decisions based on the same set of facts. The motion, which is left to the sound discretion of the trial court, should be granted absent a showing of prejudice to the non-movant, pursuant to CPLR 602(a).

Rhoe v. Reid, NY Slip Op 08049 (2d Dep't November 21, 2018)

Here is the decision.

Transfer of title to a motor vehicle.

Practice point:  The title is transferred when the parties intend the transfer to occur.

Bunn v. City of New York, NY Slip Op 07936 (1st Dep't November 20, 2018)

Here is the decision.

A dismissed fraud claim.

Practice point:  The claim will be dismissed as duplicative of the contract claim if it does not allege that the defendant breached a duty other than the contractual duty, but merely restates the contract claim in terms of fraud and misrepresentation.

FJ Vulis, LLC v. Val, NY Slip Op 07835 (1st Dep't November 15, 2018)

Here is the decision.

General Municipal Law § 50-e.

Practice point:  Where malpractice is apparent from an independent review of the medical records, those records constitute actual notice of the pertinent facts of the claim.

Student note:  Pursuant to the statute, a party seeking to sue a public corporation must serve a notice of claim on the prospective defendant within ninety days after the claim arises.

Ballantine v. Pine Plains Hose Co., Inc., NY Slip Op 07697 (2d Dep't November 14, 2018)

Here is the decision.

Court holiday.

Preemptions by federal law.

Practice point:  Federal law preempts State claims that require the interpretation of a collective bargaining agreement.

Student note:  When the Appellate Division affirms on preemption grounds, it need not reach any of the other issues raised in the parties' briefs.

Matter of McLane v. AT&T, Inc., NY Slip Op 07686 (1st Dep't November 13, 2018)

Here is the decision.

Insufficient allegations of fraud.

Practice point:  Allegations pled on information and belief are not sufficient to establish the necessary quantum of proof to sustain a claim of fraud.

Weinberg v. Kaminsky, NY Slip Op 07652 (1st Dep't November 13, 2018)

Here is the decision.