Constructive trusts.

Practice point: A cause of action to impose a constructive trust is governed by a six-year statute of limitations, which begins to accrue on the happening of the wrongful act giving rise to a duty of restitution.

Practitioners should note that, in determining what triggers the statute, wrongfully acquired property is held adversely from the date of acquisition. However, if the constructive trustee wrongfully withholds lawfully acquired property, it is held adversely from the date the trustee breaches or repudiates the agreement to transfer the property.

Case: Auffermann v. Distl, NY Slip Op 08689 (2d Dept. 2008)

The opinion is here.

Happy Thanksgiving.

Best wishes for a happy Thanksgiving to you and your family, and thank you for reading New York Law Notes year-round. We will be back tomorrow with another post.

Defamation.

Practice point: A public official-plaintiff’s claim will be dismissed unless it is alleged that defendant acted with actual malice, which means with knowledge that the statements at issue were false, or with reckless disregard of whether they were false. “Reckless disregard” is a term of art which means a high degree of awareness of probable falsity.

Practitioners should note that a private person-plaintiff may plead the lower standard of gross irresponsibility.

Case: Rivera v. Time Warner Inc., NY Slip Op 08539 (1st Dept. 2008)

The opinion is here.

Equitable actions.

Practice point: If the primary nature of a case is equitable and plaintiff's claimed damages are merely incidental thereto, there is no right to a jury trial, pursuant to CPLR 4101.

Practitioners should note that a counterclaim, even with a demand for damages, also is equitable in nature if it relates directly to the injunctive relief sought by plaintiff’s complaint.

Case: Ingenuit, Ltd. v. Harriff, NY Slip Op 08456 (2d Dept. 2008)

The opinion is here.

Notice of pendency.

Practice point: CPLR 6514(a) requires cancellation of a notice of pendency if service of a summons has not been completed within 30 days after the notice is filed, pursuant to CPLR 6512.

Practitioners should note that in multi-defendant cases, there is sufficient service if it is timely made on any one defendant with an ownership interest in the subject property.

Case: Deans v. Sorid, NY Slip Op 08448 (2d Dept. 2008)

The opinion is here.

Labor Law.

Practice point: Ladders are within the scope of § 200, which is a codification of the common-law duty of property owners and general contractors to provide workers with a safe place to work.

Practitioners should note that liability under the statute is governed by common-law negligence principles.

Case: Chowdhury v. Rodriguez, NY Slip Op 08441 (2d Dept. 2008)

The opinion is here.

Leave to amend.

Practice point: In exercising its discretion to grant leave to serve an amended pleading, the court will consider how long the amending party was aware of the facts on which the motion is predicated; whether a reasonable excuse for the delay is offered; and whether the other side will be prejudiced.

Practitioners should note that where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave to amend will be denied.

Case: Brooks v. Robinson, NY Slip Op 08439 (2d Dept. 2008)

The opinion is here.

Settling claims.

Practice point: An attorney has no implied power by virtue of the general retainer, standing alone, to compromise or settle a client's claim.

Practitioners should note that a general release and stipulation of discontinuance will be vacated, and the case restored, on evidence that plaintiff neither authorized nor consented to the settlement.

Case: Blakney v. Leathers, NY Slip Op 08437 (2d Dept. 2008)

The opinion is here.

Vehicle and Traffic Law §§ 1143 and 1160(e).

Practice point: A driver is not obligated to anticipate that a vehicle parked on the shoulder of a road will suddenly and unexpectedly move into a travel lane.

Practitioners should note that such an event will likely implicate the emergency doctrine, and the driver’s staying in his or her own lane and applying the brakes will be reasonable as a matter of law under this circumstance which is not of the driver’s own making.

Case: Albinowski v. Hoffman, NY Slip Op 08434 (2d Dept. 2008)

The opinion is here.

Service of process.

Practice point: A plaintiff establishes personal jurisdiction, pursuant to CPLR 308(2), when the process server delivered the summons with notice to a suitable person at defendant's place of business, and this person accepted the documents before handing them back and directing the process server to place them in defendant's mailbox.

Practitioners should note that service was valid even though plaintiff did not list the individual defendant's name on the mailing envelope, since the summons gave sufficient notice to defendant, an attorney, that he was being sued in his individual capacity.

Case: Pressley v. Shneyer, NY Slip Op 08412 (1st Dept. 2008)

The opinion is here.

Gift certificates.

Practice point: General Business Law § 396-i regulates gift certificates and gift cards, and, pursuant to i[3], requires that the terms and conditions shall be clearly and conspicuously stated thereon, including whether any fees are assessed against the balance.

Practitioners should note that while the statute does not expressly provide for a private right of action, there is nothing in the statutory language to indicate that the Legislature intended to abrogate any common-law remedy arising from alleged deceptive or improper practices concerning gift certificates or cards. In addition, a § 349 cause of action may be maintained as to all deceptive acts or practices declared to be unlawful, regardless of any other State statute.

Case: Llanos v. Shell Oil Co., NY Slip Op 08099 (2d Dept. 2008)

The opinion is here.