Motion practice.

Practice point: When plaintiff fails to serve a responsive bill of particulars following a conditional order of preclusion, the order becomes absolute.

Practitioners should note that, to avoid the adverse impact of the conditional order, plaintiff must demonstrate a reasonable excuse for the failure to comply and a meritorious cause of action.

Case: Panagiotou v. Samaritan Vil., Inc., NY Slip Op 07811 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Arbitration.

Res judicata.

Practice point: A final disposition on the merits bars litigation between the same parties on any other claims arising from the same transaction or the same or related facts, even if based upon a different theory involving different elements of proof.

Practitioners should note that the rule applies also to claims that could have been raised in the prior litigation.

Case: Shelley v. Silvestre, NY Slip Op 07822 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Happy Thanksgiving.

Thank you for following NEW YORK LAW NOTES throughout the year.

The courts reopen tomorrow and we will be posting again.

Tomorrow's issue: Res judicata.

Municipalities Law.

Practice point: On a motion for leave to serve a late notice of claim, the court will consider whether the municipality had actual knowledge of the essential facts within a reasonable time after the claim arose; whether there is a reasonable excuse for the failure to serve timely; and whether the municipality would be prejudiced in maintaining its defense.

Practitioners should note that the notice must give the municipality knowledge of the specific claim and not some general knowledge that a wrong has been committed.

Case: Wright v. City of New York, NY Slip Op 07856 (2d Dept. 2009)

The opinion is here.

Friday’s issue: Res judicata.

Labor Law.

Practice point: Where plaintiffs' injuries result from an allegedly dangerous condition on the property, and not the way the work was being performed, a property owner will be liable under a theory of common-law negligence, as codified by § 200.

Practitioners should note that a general contractor may be held liable if it had control over the work site and actual or constructive notice of the dangerous condition.

Case: Bridges v. Wyandanch Community Dev. Corp., NY Slip Op 07782 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Motion practice.

Practice point: The showing of merit required on a motion to restore is less than that required to defend a motion for summary judgment.

Practitioners should note that a finding of merit sufficient to vacate a plaintiff's default does not preclude a subsequent granting of summary judgment to defendants.

Case: Bowman v. Beach Concerts, Inc., NY Slip Op 07747 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Trial practice.

Practice point: When there are common questions of law or fact, a joint trial is warranted unless the opposing party demonstrates prejudice to a substantial right.

Practitioners should note that prejudice can be mitigated by the trial court with the appropriate jury instructions.

Case: Pierre-Louis v. DeLonghi Am., Inc., NY Slip Op 07607 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: A trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment.

Practitioners should note that a court exceeds its powers if, sua sponte, it reconsiders summary judgment motions after the case is dismissed by judgment.

Case: Merriwether v. Osborne, NY Slip Op 07602 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Trial practice.

Family Law.

Practice point: The award of attorney's fee pursuant to Domestic Relations Law § 237[a] is within the sound discretion of the court, and the issue is controlled by the equities and circumstances of each particular case.

Practitioners should note that the court is likely to consider the financial circumstances of both parties and the relative merit of the parties' positions.

Case: Gruppuso v. Caridi, NY Slip Op 07590 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A court has the discretion to extend the time to serve a notice of claim, pursuant to General Municipal Law § 50-e[5].

Practitioners should note that the lack of a reasonable excuse will not bar the granting of leave where there is actual notice and an absence of prejudice.

Case: Erichson v. City of Poughkeepsie Police Dept., NY Slip Op 07580 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Family Law.

Contracts.

Practice point: A clear and complete writing must be enforced according to its plain terms, without reference to parol or extrinsic evidence.

Practitioners should note that the implied covenant of good faith and fair dealing inherent in every contract cannot be used to create terms that do not exist in the writing.

Case: Vanlex Stores, Inc. v. BFP 300 Madison II LLC, NY Slip Op 07677 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.