Happy New Year.

Today is a Court holiday, and so there is no post on NEW YORK LAW NOTES.

I hope that you and your family will enjoy a safe and happy holiday weekend, and thank you for support throughout the year just past.

Monday's issue: Motion practice.

Motion practice.

Practice point: A cause of action alleging fraud must be pleaded with specificity, pursuant to CPLR 3016(b).

Students should note that a request for punitive damages is not a separate cause of action.

Case: Brualdi v. Iberia Airlines, NY Slip Op 09464 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Motion practice.

Municipalities Law.

Practice point: A municipality is immune from liability on claims that it negligently designed the sewerage system.

Students should note that a municipality is not an insurer of its sewer system and will be liable only if the injury was caused by active negligence in maintenance.

Case: Azizi v. Villiage of Croton-on-Hudson, NY Slip Op 09461 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A plaintiff may seek a default judgment when defendant has failed to appear, plead or proceed to trial, or when the court orders a dismissal pursuant to CPLR 3215[a].

Students should note that serving a timely notice of claim is a condition precedent for commencing an action against a defendant-municipality, pursuant to General Municipal Law §§ 50-e[1][a], 50-i[1][a].

Case: Goonan v. New York City Trans. Auth., NY Slip 09216 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Municipalities Law.

Motion practice.

Practice point: A settlement agreement terminates the action only if there is an express stipulation of discontinuance, or an entry of judgment in accordance with the settlement terms.

Students should note that, otherwise, the court retains supervisory power, and may act on behalf of the party who is moving to enforce the settlement.

Case: Church Extension Plan v. Harvest Assembly of God, NY Slip Op 09207 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Merry Christmas.

Today is a court holiday, and so there is no post on NEW YORK LAW NOTES.

I hope that you and your family will enjoy a blessed Christmas, and thank you for your support throughout the year.

Monday’s issue: Motion practice.

Motion practice.

Practice point: The process server's affidavit of service constitutes prima facie evidence of proper service, pursuant to CPLR 308(2).

Students should note that plaintiff's evidence that a copy of the summons and complaint was mailed to defendant's correct residence address creates a presumption of proper mailing and of receipt.

Case: C&H Import & Export, Inc. v. MNA Global, Inc., NY Slip Op 09205 (2d Dept. 2010)

Here is the decision.

Monday's issue: Motion practice.

Corporations.

Practice point: For corporations to be alter egos, the parent must directly intervene in the subsidiary’s management so that the subsidiary's indeces of incorporation, directors and officers are completely ignored.

Students should note that a parent company will be liable for a subsidiary’s torts only if it exercises complete dominion and control over the subsidiary.

Case: Broxmeyer v. United Capital Corp., NY Slip Op 09204 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: An unsworn accident report is not evidence in admissible form sufficient to defeat a summary judgment motion.

Students should note that the report may be admissible as a business record, pursuant to CPLR 4518(a), if it (1) was required as a condition of employment, (2) was made at or about the time of the accident, and (3) was maintained in the regular course of business.

Case: Harrison v. Bailey, NY Slip Op 09221 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Corporations.

Employment Law.

Practice point: A petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination, pursuant to CPLR 217[1].

Students should note that the time to commence such a proceeding is not extended by the petitioner's pursuit of administrative remedies.

Case: Kahn v. New York City Dept. of Educ., NY Slip Op 09168 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion pratice.

Corporations.

Practice point: Members of an organization entering into a contract with the organization may be bound by duly enacted organizational by-laws compelling arbitration.

Students should note that a party will not be compelled to arbitrate absent a clear, explicit, and unequivocal agreement to do so.

Case: Dean v Harvestime Tabernacle United Pentecostal Church Intl., NY Slip Op 09211 (2d Dept. 2010)

Here is the decision.

Monday's issue: Employment Law.

Torts.

Practice point: Plaintiff’s subjective claim of continuing pain and the inability to work for more than 90 days is not dispositive in claiming a 90/180 category serious injury.

Students should note that even where there is objective proof, the claim may fail if there is a preexisting condition.

Case: Rosa-Diaz v. Maria Auto Corp., NY Slip Op 08995 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Corporations

Motion practice.

Practice point: A court has the inherent power, sua sponte or on motion, to reconsider and vacate its prior decision before issuing an order thereon.

Students should note that the claim-splitting doctrine does not preclude a tenant from seeking damages in an action separate from that in which he had sought to be restored to possession.

Case: Rostant v. Swersky, NY Slip Op 08987 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: A defendant must plead the affirmative defense of statute of frauds in order to rely on statutory provisions requiring an agreement to be reduced to a writing (General Obligations Law §§ 5-701, 5-1103, 5-1105).

Students should note that defendant's trial motion to amend the pleadings to assert these provisions will be denied if the motion was interposed after the close of plaintiff's evidence .

Case: Ryan v. Kellogg Partners Institutional Servs., NY Slip Op 08983 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: A claim against a municipal employee who was acting within the scope of his employment will be dismissed if the notice of claim is not timely served, pursuant to General Municipal Law § 50-i.

Students should note that defendant is not obliged to advise plaintiff of the untimely service, or to plead it as an affirmative defense.

Case: Dorce v. United Rentals N. Am., Inc., NY Slip Op 08894 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Leave to amend a complaint will be freely granted if the proposed amendment will not prejudice or surprise the defendant, is not patently devoid of merit, and is not plainly insufficient, pursuant to CPLR 3025[b].

Students should note that punitive damages are recoverable in a medical malpractice action only where defendant's conduct evinces a high degree of moral culpability or willful or wanton negligence or recklessness.

Case: Dmytryszyn v. Herschman, NY Slip Op 08893 (2d Dept. 2010)

Here is the decision.

Monday's issue: Torts.

Motion practice.

Practice point: Leave to amend a complaint will be freely granted if the proposed amendment will not prejudice or surprise the defendant, is not patently devoid of merit, and is not plainly insufficient, pursuant to CPLR 3025[b].

Students should note that punitive damages are recoverable in a medical malpractice action only where defendant's conduct evinces a high degree of moral culpability or willful or wanton negligence or recklessness.

Case: Dmytryszyn v. Herschman, NY Slip Op 08893 (2d Dept. 2010)

Here is the decision.

Motion practice.

Practice point: On a summary judgment motion in a malpractice action, defendant has the initial burden of establishing, prima facie, either the absence of a departure from good and accepted medical practice, or that such a departure was not the proximate cause of the alleged injury.

Students should note that, in opposition, plaintiff must submit evidence to rebut the prima facie showing, demonstrating a triable issue of fact.

Case: Brady v. Westchester County Healthcare Corp., NY Slip Op 08886 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: An application to be relieved from a default judgment, pursuant to CPLR 5015, requires a showing of a reasonable excuse and a meritorious defense.

Students should note that where a court finds that a defendant failed to personally receive notice of the summons in time to defend and has a meritorious defense, relief from a default may be permitted, pursuant to CPLR 317.

Case: Sanchez v. Avuben Realty LLC, NY Slip Op 08780 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: The allegation that a defendant entered into a contract with the intent not to perform will not support a cause of action sounding in fraud.

Students should note that a cause of action sounding in fraud is not duplicative of one to recover damages for a breach where plaintiff sues non-parties, and seeks compensatory damages which are otherwise not recoverable.

Case: Introna v. Huntington Learning Ctrs., Inc., NY Slip Op 08533 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Contracts.

Practice point: A contract is ambiguous if it reasonably admits more than one interpretation, and extrinsic evidence is admissible to determine the parties' intent.

Students should note that if parol evidence is necessary to interpret the contract, summary judgment is not warranted.

Case: Foot Locker, Inc. v. Omni Funding Corp. of Am., NY Slip 08431 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Torts.

Corporations.

Practice point: A general partner’s fiduciary duty to limited partners continues until the closing of a buy-out transaction.

Students should note that, generally if a fiduciary sells property for an inadequate price the measure of damages is the difference between what was received and what should have been received. However, there is an appreciation of damages if the fiduciary engaged in self-dealing.

Case: Frame v. Maynard, NY Slip Op 08430 (1st Dept. 2010)

Here is the decision.

Monday’s issue: Contracts.

Real Estate Law.

Practice point: There is a presumption that a tenant in common in possession holds the property for the benefit of the cotenant, pursuant to Real Property Actions and Proceedings Law § 541.

Students should note that the presumption ceases only after 10 years exclusive occupancy or upon ouster.

Case: Bank of Am., N.A. v. 414 Midland Ave. Assoc., LLC, NY Slip Op 08053 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Corporations.

Motion practice.

Practice point: Leave to conform a pleading to the proof, pursuant to CPLR 3025(c), will be freely granted.

Students should note that lateness, absent prejudice, is not a barrier to the amendment.

Case: Worthen-Caldwell v. Special Touch Home Care Servs., Inc., NY Slip Op 08096 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Real Estate Law.

Motion practice.

Practice point: Generally, a declaratory judgment action is governed by the six-year catch-all statute of limitations of CPLR 213(1).

Students should note that if the action could have been brought in a different form, asserting a particular cause of action, the limitations period applicable to that cause of action will apply.

Case: Walter v. Starbird-Veltidi, NY Slip Op 08095 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: Evidentiary rulings are not appealable, either as of right or by permission, pursuant to CPLR 5701.

Students should note that a motion to set aside a jury verdict, pursuant to CPLR 4404, requires a showing that no line of reasoning and permissible inference would lead a rational person to the jury’s finding.

Case: Rosenfeld v. Baker, NY Slip Op 08087 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: A cause of action sounding in fraudulent representation requires a showing that defendant spoke a falsehood intending to deprive plaintiff of a benefit, and that plaintiff was thereby damaged.

Students should note that the heightened pleading standard of CPLR 3016(b) requires only that the allegation be set forth so that defendant is informed of the incident complained of.

Case: RBE Northern Funding, Inc. v. Stone Mountain Holdings, LLC, NY Slip Op 08086 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Motion practice.

Court holiday.

The courts are closed today, and so there is no post.

Happy Thanksgiving, and thank you for your support throughout the year.

Tomorrow’s issue: Torts.

Landlord-Tenant Law.

Practice point: Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including a third party's criminal conduct.

Students should note that a tenant’s recovery of damages requires a showing that the landlord's negligence was a proximate cause of the injury.

Case: Muong v. 550 Ocean Avenue, LLC, NY Slip Op 08078 (2d Dept. 2010)

Here is the decision.

Friday’s issue: Torts.

Attorney-client relations.

Practice point: Filing the requisite retainer statement with the Office of Court Administration is a necessary to receiving a fee.

Students should note filing nunc pro tunc will preserve the right to recover a fees, but only if the attorney sought leave of court for the filing.

Case: Giano v. Ioannou, NY Slip Op 08064 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Landlord-Tenant Law.

Torts.

Practice point: If a private physician attends a patient at a hospital, it is the physician’s duty, not the hospital’s, to get the patient's informed consent.

Students should note that a hospital employee's memorializing the consent does not transfer the duty to the hospital.

Case: Sela v. Katz, NY Slip Op 07918 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Attorney-client relations.

Attorney-client relations.

Practice point: Pursuant to Judiciary Law § 475, from the commencement of the action, the appearing attorney has a lien on the client's cause of action, and the lien attaches to any favorable final order or settlement.

Students should note that the lien is forfeited if the attorney withdraws without sufficient cause.

Case: Nassour v. Lutheran Medical Center, NY Slip Op 07906 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Torts.

Motion practice.

Practice point: An account stated is an agreement based on prior transactions with respect to the correctness of the account items and the balance due.

Students should note that the agreement may be implied from the retention of an account rendered, without objection, for an unreasonable period of time.

Case: Landau v. Weissman, NY Slip Op 07899 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Attorney-client relations.

Motion practice.

Practice point: A person whose conveyance or encumbrance is recorded after the filing of a notice of pendency is bound by all subsequent proceedings, as if he were a party, pursuant to CPLR 6501.

Students should note that, to cut off a prior lien, such as a mortgage, the purchaser or encumbrancer must have no knowledge of the outstanding lien and must win the race to the recording office.

Case: DLJ Capital Mortgage, Inc. v. Windsor, NY Slip Op 07886 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: To prevail on a motion for civil contempt, movant must demonstrate a clear and unequivocal mandate of the court, and prejudice of movant's rights.

Students should note that the mere act of disobedience, regardless of motive, can sustain the finding.

Case: Bais Yoel Ohel Feige v. Congregation Yetev Lev D'Satmar of Kiryas Joel, NY Slip Op 07875 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Labor Law.

Practice point: There is an exemption to liability for one and two-family homeowners who merely contract for the work and do not supervise it.

Students should note that the owner’s attendance at meetings regarding the work's progress does not rise to the level of supervision necessary to impose liability.

Case: Castellanos v. United Cerebral Palsy Assn. of Greater Suffolk, Inc., NY Slip Op 07714 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Labor Law.

Practice point: There is an exemption to liability for one and two-family homeowners who merely contract for the work and do not supervise it.

Students should note that the owner’s attendance at meetings regarding the work's progress does not rise to the level of supervision necessary to impose liability.

Case: Castellanos v. United Cerebral Palsy Assn. of Greater Suffolk, Inc., NY Slip Op 07714 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Contracts.

Practice point: Implicit in all agreements is a covenant of good faith and fair dealing.

Students should note that there is a breach when a party acts in a way that deprives the other of a benefit of the agreement.

Case: Atlas El. Corp. v. United El. Group, Inc., NY Slip Op 07699 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Labor Law.

Court holiday.

The courts are closed today, and so there is no post.

To all Veterans, thank you for your service, and, if you have a family member in service today, thank you for your sacrifice.

Tomorrow's issue: Contracts.

Motion practice.

Practice point: An unlicensed contractor cannot recover damages based either on breach of contract or quantum meruit.

Students should note that a home improvement contractor must plead possession of a valid license in order to commence an action to foreclose a mechanic's lien.

Case: Quick Start Constr. Corp. v. Staiger, NY Slip Op 07731 (2d Dept. 2010)

Here is the decision.

Friday's issue: Contracts.

Torts.

Practice point: To establish a building owner’s liability for an elevator-related injury, a plaintiff must establish that there was a defect of which the owner had actual or constructive notice.

Students should note that, if the owner hires an elevator maintenance company, the owner can be liable if it has notice of a defect and does not notify the elevator company.

Case: Cilinger v. Arditi Realty Corp., NY Slip Op 07715 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: On an appeal from a judgment entered after a nonjury trial, the Appellate Division may render the judgment it finds is warranted by the facts.

Students should note that, in a close case, the Court will take into account the fact that the trial judge had the advantage of seeing the witnesses.

Case: Bryant v. State of New York, NY Slip Op 07710 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Torts.

Practice point: For there to be strict liability for harm caused by a domestic animal, the owner must have known, or should have known, of the animal's vicious propensities.

Students should note that the violation of a local leash law is only evidence of negligence.

Case: Wright v. Fiore, NY Slip Op 07531 (2d Dept. 2010)

Here is the decision.

Monday's issue: Motion practice.

Torts.

Practice point: To establish the existence of a fiduciary relationship between a cleric and a congregant, there must be a showing of de facto control and dominance in the counseling relationship.

Students should note that the test is whether the congregant was inherently vulnerable and incapable of self-protection.

Case: Spielman v. Carrino, NY Slip Op 07527 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Employment Law.

Practice point: Pursuant to Workers' Compensation Law §§ 11 and 29(6), an employee who is entitled to receive compensation benefits may not sue the employer.

Students should note that, similarly, the employee cannot sue a special employer.

Case: Dulak v. Heier, NY Slip Op 07509 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Court holiday.

The courts are closed, and so there is no post today.

Tomorrow's issue: Employment Law.

Municipalities Law.

Practice point: A municipality, on notice of a dangerous traffic condition, may be liable if it does not consider reasonable measures to alleviate the condition, or, if it unjustifiably delays taking action.

Students should note that the municipality has a continuing duty to review its traffic plans.

Case: Turturro v. City of New York, NY Slip Op 07329 (2d Dept. 2010)

Here is the decision.

Wednesday's issue: Employment Law.

Corporations.

Practice point: Persons may not be held personally liable on the corporation's contracts, provided they did not purport to bind themselves individually.

Students should note that a corporation's officers do not become liable merely because they have made decisions or taken actions that resulted in the corporation's breaching a contract.

Case: Stern v. H. DiMarzo, Inc., NY Slip Op 07327 (2d Dept. 2010)

Here is the decision.

Monday's issue: Municipalities Law.

Corporations.

Practice point: Persons may not be held personally liable on the corporation's contracts, provided they did not purport to bind themselves individually.

Students should note that a corporation's officers do not become liable merely because they have made decisions or taken actions that resulted in the corporation's breaching a contract.

Case: Stern v. H. DiMarzo, Inc., NY Slip Op 07327 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Municipalities Law.

Motion practice.

Practice point: A sanction for spoliation requires a showing that the other side disposed of critical evidence, fatally compromising the ability to defend the action.

Students should note that, generally, striking a pleading is reserved for instances of willful or contumacious conduct.

Case: Scordo v. Costco Wholesale Corp., NY Slip Op 07324 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Corporations.

Motion practice.

Practice point: A cause of action based on promissory estoppel requires a clear and unambiguous promise; reliance by the party to whom the promise is made; and an injury sustained because of that reliance.

Students should note that Civil Rights Law § 80-b serves only to return the parties to their position prior to their becoming engaged if the marriage fails to materialize.

Case: Schwartz v. Miltz, NY Slip Op 07323 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Labor Law.

Practice point: A cause of action sounding in a violation of Labor Law § 200 or common-law negligence may arise either from a dangerous condition at the work site, or from the way the work was performed.

Students should note that the owner is not liable solely because it had notice of the way in which the work was being performed.

Case: Pilato v. 866 U.N. Plaza Assoc., LLC, NY Slip Op 07157 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: A property owner is not liable for accidents resulting from the accumulation of snow or ice for a reasonable period of time after the storm has stopped.

Students should note that the question of whether a reasonable period of time had passed may be decided as a matter of law.

Case: Lanos v. Cronheim, NY Slip Op 07149 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Labor Law.

Motion practice.

Practice point: CPLR 208’s infancy toll is personal to the infant, and does not extend to a derivative cause of action.

Students should note that by demonstrating that defendant had timely knowledge of the facts underlying the claim, plaintiff establishes a lack of substantial prejudice on a motion for late service of the notice of claim.

Case: Kim L. v. Port Jervis City School Dist., NY Slip Op 07148 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Torts.

Contracts.

Practice point: Parol testimony is admissible to prove a condition precedent to the effectiveness of a written agreement, if the condition does not contradict agreement’s express terms.

Students should note that oral conditions may not be added to a signed and written real estate sales contract when its delivery was to the other party's agent.

Case: Torres v. D’Alesso, NY Slip Op 07127 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Ethics.

Practice point: The Court may suspend an attorney pending consideration of charges of misconduct, or upon the attorney’s failure to comply with a lawful demand of the Court or of the Departmental Disciplinary Committee.

Students should note that the attorney’s failure to respond to the Committee's inquiries, and failure to respond to the Committee’s motion to suspend, will result in an immediate suspension.

Case: Matter of Bautista, NY Slip Op 07126 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Contracts.

Motion practice.

Practice point: The court cannot dismiss a complaint for failure to prosecute if plaintiff has shown a justifiable excuse for the delay and a potentially meritorious cause of action, pursuant to CPLR 3216.

Students should note that plaintiff might avoid dismissal even without this dual showing.

Case: Gibson v. Fakheri, NY Slip Op 07141 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Ethics.

Motion practice.

Practice point: In an action pleaded in products liability, breach of warranty or negligence, plaintiff must prove that the alleged defect was a substantial cause of the injury-producing event.

Students should note that defendants are liable for the foreseeable consequences of their acts, but plaintiffs need not demonstrate the foreseeability of the exact manner in which the accident happened.

Case: Fahey v. A.O. Smith Corp., NY Slip Op 07139 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Torts.

Practice point: An accountant may be liable in negligence to a third party if the accountant knew that the financial reports were to be used for a particular purpose, and that they would be relied on.

Students should note that in order to establish accounting fraud, plaintiff must show misrepresentation of material fact, scienter, reliance and damages.

Case: Barrett v Freifeld, NY Slip Op 07130 (2d Dept. 2010)

Here is the decision.

Monday's issue: Motion practice.

Torts.

Practice point: A condition that is ordinarily apparent may be considered a trap where the condition is obscured or the plaintiff is distracted.

Students should note that proof that a dangerous condition is open and obvious merely negates defendant's obligation to warn, but does not preclude the landowner's liability for not maintaining the property in a safe condition.

Case: Villano v. Strathmore Terrace Homeowners Assn., Inc., NY Slip Op 06789 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Motion practice.

Practice point: The motion to amend the bill of particulars will be denied when it was made four months after the note of issue was filed, and four years after the action was commenced.

Students should note that the claim of plaintiffs' counsel that he relied on his client's statement that the subject stairs were being renovated, and so he did not inspect them until four years after the accident, does not constitute a reasonable excuse for the delay in moving.

Case: Cintron v. New York City Transit Authority, NY Slip Op 07078 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Motion practice.

Practice point: No defamation claim lies if a complaint's allegations are pertinent to the action, since they are protected by the judicial proceedings privilege.

Students should note that the one-year statute of limitations for libel and slander starts to run on the date of publication.

Case: Casa de Meadows, Inc. v. Zaman, NY Slip Op 06712 (1st Dept 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Court holiday.

The courts are closed today, and so there is no post.

Tomorrow's issue: Motion practice.

Insurance Law.

Practice point: An insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered.

Students should note that a subcontractor's obligation to replace work it damages goes to potential liability and does not create an insurable interest in the entire building.

Case: St. Paul Fire v. FD Sprinkler, NY Slip Op 06755 (1st Dept. 2010)

Here is the decision.

Tuesday's issue: Torts.

Contracts.

Practice point: Plaintiff's knowledge of defendant's wrong act is not necessary to start the running of the Statute of Limitations.

Students should note that no appeal lies from a ruling made during oral argument.

Case: de Hermandez v. Bank of Nova Scotia, NY Slip Op 06754 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Insurance Law.

Ethics.

Practice point: Disbarment is warranted where there is a pattern of neglect of client matters and a failure to comply with court orders.

Students should note that the Court gives significant weight to the discipline imposed by the jurisdiction where disciplinary charges were originally brought, even if a different sanction would have been imposed in New York.

Case: Matter of Jaffe, NY Slip Op 06717 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Contracts.

Motion practice.

Practice point: A defendant looking to vacate a default judgment must demonstrate a reasonable excuse and a potentially meritorious defense.

Students should note that defendant's excuse that the insurer disclaimed coverage and that she could not afford an attorney is insufficient as a matter of law.

Case: O'Donnell v. Frangakis, NY Slip Op 06622 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Ethics.

Family Law.

Practice point: A custody agreement will not be set aside unless there is a significant change in circumstances, and the modification is in the best interests of the child.

Students should note that a noncustodial parent seeking the change must make an evidentiary showing sufficient to warrant a hearing.

Case: Jurgensen v. Jurgensen, NY Slip Op 06617 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Stipulations of settlement are contracts and will be interpreted as such.

Students should note that the stipulation will be undone only on cause sufficient to invalidate a contract, such as fraud or mistake.

Case: Singh v. North Shore Univ. Hosp., NY Slip Op 06626 (2d Dept. 2010)

Here is the decision.

Monday's issue: Family Law.

Motion practice.

Practice point: CPLR 3101(a) will be construed liberally so that there will be disclosure of any material that is even arguably relevant.

Students should note that the essential test is one based on usefulness and reason.

Case: Lentz v. Nic's Gym, Inc., NY Slip Op 06620 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Contracts.

Practice point: All contracts imply a covenant of good faith and fair dealing in the course of performance.

Students should note that, pursuant to this covenant, neither party shall do anything which destroys the other party's right to the fruits of its contract.

Case: Forman v. Guardian Life Ins. Co. of Am., NY Slip Op 06606 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Insurance Law.

Practice point: Noncompliance with a notice condition relieves the insurer of its obligation under the contract.

Students should note that a 60-day delay, without an excuse, violates the notice condition as a matter of law.

Case: Hermany Farms, Inc. v. Seneca Ins. Co., Inc., NY Slip Op 06607 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Contracts.

Employment Law.

Practice point: A special employee is one who is transferred for a limited time of whatever duration to the service of another.

Students should note that, in determining whether there is a special employment, courts will consider who controls and directs the work, and whether the employee knew of and consented to the special employment relationship.

Case: George v. IBC Sales Corp., NY Slip Op 06567 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Insurance Law.

Torts.

Practice point: New York does not recognize civil conspiracy to commit a tort as an independent cause of action.

Students should note that an action sounding in conversion does not lie where the property involved is real property.

Case: Dickinson v. Igoni, NY Slip Op 06565 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Employment Law.

Motion practice.

Practice point: A court may consider affidavits and other evidence to remedy defects in a complaint.

Students should note that inconsistent causes of action may be pleaded in the alternative, pursuant to CPLR 3014.

Case: Costello v. Verizon N.Y., Inc., NY Slip Op 06562 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Ethics.

Practice point: Sanctions for the filing of frivolous actions generally range from censure to a one-year suspension.

Students should note that a lawyer cannot knowingly advance a claim or defense that is unwarranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the law.

Case: Matter of Chiofalo, NY Slip Op 06555 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Insurance Law.

Practice point: The insurer has a duty to defend when the complaint's allegations suggest a reasonable possibility of coverage, or where the insurer has actual knowledge of facts establishing a reasonable possibility.

Students should note that an ambiguity in an exclusionary clause will be construed most strongly against the insurer.

Case: DMP Contr. Corp. v. Essex Ins. Co., NY Slip Op 06548 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Ethics.

Ethics.

Practice point: Failure to appear at a disciplinary hearing before the Referee results in the charges being deemed admitted, pursuant to 22 NYCRR 605.12(c) (4).

Students should note that, after a suspension, the continued practice of law constitutes a misdemeanor under Judiciary Law § 486.

Case: Matter of McLain-Sewer, NY Slip Op 06543 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Insurance Law.

Real Estate Law.

Real Estate Law.

Practice point: The owner of waterway uplands has riparian rights, including reasonable access to the water.

Students should note that these rights are limited to the waters in front of the owner's property, and do not extend to the frontage of the adjoining parcel.

Casee: Kearns v. Thilburg, NY Slip Op 06518 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Ethics.

Municipalities Law.

Practice point: The Volunteer Firefighters' Benefit Law is the exclusive remedy of anyone entitled to recover damages resulting from a volunteer firefighter's line-of-duty injury.

Students should note that the Legislature is presumed to know the law in existence at the time it enacts legislation.

Case: Brady v. Village of Malverne, NY Slip Op 06513 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Real Estate Law.

Ethics.

Practice point: Public censure is the appropriate sanction in situations involving neglect, where the conduct is aberrational and the attorney has shown remorse and has cooperated in the disciplinary process.

Students should note that public censure is likewise appropriate in the case of a false notarization, where there are mitigating factors.

Case: Matter of Essien, NY Slip Op 06512 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Municipalities Law.

Motion practice.

Practice point: A party is required to preserve a claim that the jury verdict is inconsistent.

Students should note that the issue must be raised before the jury is discharged.

Case: Arrieta v. Shams Waterproofing, Inc., NY Slip Op 06508 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Ethics.

Torts.

Practice point: A targeted attack on an apartment building's resident does not result in a landlord's liability for failure to provide security.

Students should note that when the action is dismissed as against defendant, defendant's cross-claim is dismissed.

Case: Flynn v. Esplanade Gardens, Inc., NY Slip Op 06506 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: In opposing a motion for a default judgment, an affidavit of merit is not necessary if an order has not been entered.

Students should note that an insurance carrier's delay in assigning counsel is reasonable cause for a defendant's default in answering.

Case: Arrington v. Bronx Jean Co., NY Slip Op 06399 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Torts.

Trusts and Estates.

Practice point: A power of attorney that is coupled with an interest or which has been given in exchange for valuable consideration is irrevocable.

Students should note that, in order for a power to be considered coupled with an interest, the agent must have a personal estate in the thing or matter underlying the power.

Case: Frankel v. J.P. Morgan Chase, NY Slip Op 06476 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Real Estate Law.

Practice point: New York law imposes no duty on the seller to disclose anything about the property when the parties deal at arm's length, unless there is active concealment.

Students should note that the seller's silence, standing alone, does not amount to an actionable concealment.

Case: Beach 104 St. Realty, Inc. v. Kisslev-Mazel Realty, LLC, NY Slip Op 06474 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Trusts and Estates.

Ethics.

Practice point: An attorney's failure over the course of nine months to commence an action is sanctionable as neglect within the meaning of DR 6-101(A)(3).

Students should note that the issue of the statute of limitation's expiration is irrelevant.

Case: Matter of Block, NY Slip Op 06400 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Real Estate Law.

Happy Labor Day.

Because of the Court holiday, there is no post today.

Tomorrow's issue: Ethics.

Administrative Law.

Practice point: A petitioner objecting to an agency's acts must exhaust administrative remedies before commencing litigation.

Students should note that an exception is where the act is challenged as unconstitutional or beyond the agency's power.

Case: Pitts v. N.Y. City Off. of Comptroller, NY Slip Op 06422 (2d Dept. 2010)

Here is the opinion.

Tuesday's issue: Ethics.

Motion practice.

Practice point: The writ of prohibition is available only where there is a clear legal right, and only in those cases where a court acts or threatens to act in excess of its powers.

Students should note that it is not available to correct errors of substantive law or procedure, however grievous.

Case: Dowd v. Buchter, NY Slip Op 06419 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Administrative Law.

Motion practice.

Practice point: Ignorance of the notice of claim requirement is not a reasonable excuse for failure to timely serve.

Students should note that petitioner must establish that late notice would not be prejudicial, and that the City had actual knowledge of the essential facts within 90 days of the claim's accrual.

Case: Bush v. City of New York, NY Slip Op 06417 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Mental Hygiene Law.

Practice point: Involuntary admission for psychiatric treatment requires clear and convincing evidence that the patient poses a substantial threat of physical harm to himself or others.

Students should note that the hospital's director must forthwith notify Mental Hygiene Legal Services, and the patient is entitled to a hearing within five days of requesting it.

Case: Rueda v. Charmaine D., NY Slip Op 06393 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Courts will liberally allow persons to intervene in actions where they have a bona fide interest in an issue.

Students should note that distinctions between intervention as of right and discretionary intervention are not shaply applied.

Case: Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, NY Slip Op 06401 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Mental Hygiene Law.

Trial practice.

Practice point: The standard for determining if a jury verdict is contrary to the weight of the evidence is whether the evidence so favors the unsuccessful party that it could not have been reached on any fair interpretation.

Students should note that if the verdict can be reconciled with a reasonable interpretation of the evidence, the successful party is entitled to the presumption that the jury adopted that view.

Case: Courbertier v. Academy Bus, LLC, NY Slip Op 06289 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Labor Law.

Practice point: The purpose of § 240(1) is to protect workers not from routine risks but from the specific risks resulting from elevation differentials at the worksite.

Students should note that the statute covers necessary and incidental activities, even if the injury is sustained away from the site of the construction work.

Case: D'Alto v. 22-24 129th St., LLC, NY Slip Op 06291 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Trial practice.

Family Law.

Practice point: In order to modify a custody or visitation arrangement, there must be a showing of a change in circumstances requiring the modification to protect the best interests of the child.

Students should note that the standard for determining the child's best interests is the totality of the circumstances.

Case: Peralta v. Irrizary, NY Slip Op 06374 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Labor Law.

Torts.

Practice point: A cause of action sounding in abuse of process requires an unlawful interference with one's person or property.

Students should note that merely commencing a civil action, even with a malicious motive, is insufficient to make out the cause of action.

Case: Tenore v. Kantrowitz, Goldhamer & Graifman, P.C., NY Slip Op 06370 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Family Law.

Torts.

Practice point: A cause of action sounding in abuse of process requires an unlawful interference with one's person or property.

Students should note that merely commencing a civil action, even with a malicious motive, is insufficient to make out the cause of action.

Case: Tenore v. Kantrowitz, Goldhamer & Graifman, P.C., NY Slip Op 06370 (2d Dept. 2010)



Tomorrow's issue: Family Law.

Motion practice.

Practice point: If a defendant fails to pay the settlement amount within 21 days of tender of the required documents, plaintiff, without further notice, may enter a judgment for the amount, as well as interest, costs and disbursements, pursuant to CPLR 5003-1(e).

Students should note that where the release and stipulation of discontinuance are tendered by mail, the 21-day period is measured from their receipt.

Case: Klee v. America's Best Bottling Co., Inc., NY Slip Op 06361 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Torts.

Practice point: Where an object capable of deteriorating is concealed from view, a property owner's duty of reasonable care requires periodic inspection of the area.

Students should note that a cause of action may sound in res ipsa loquitur if the area in question is one to which the public did not have unfettered access.

Case: Hoffman v. United Methodist Church, NY Slip Op 06360 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Motion practice.

Practice point: A court which renders a judgment or order may relieve a party from it on such terms as may be just, pursuant to CPLR 5015(a).

Students should note that such terms may include the imposition of a bond or undertaking.

Case: Doris v. Lewis, NY Slip Op 06357 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Motion practice.

Practice point: A court which renders a judgment or order may relieve a party from it on such terms as may be just, pursuant to CPLR 5015(a).

Students should note that such terms may include the imposition of a bond or undertaking.

Case: Doris v. Lewis, NY Slip Op 06357 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Motion practice.

Practice point: Determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable, pursuant to CPLR 3212(f).

Students should note that the delay requires a showing that discovery may lead to relevant evidence.

Case: Anne Koplick Designs, Inc. v. Lite, NY Slip OP 06356 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Generally, estoppel is unavailable as against a governmental agency.

Students should note that the exception is when the agency's actions would defeat a legal or properly obtained right.

Case: Brad H. v. City of New York, NY Slip Op 06355 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Torts.

Practice point: A driver is bound to see what is there to be seen with the proper use of his senses.

Students should note that there can be more than one proximate cause of an accident.

Case: Topalis v. Zowalski, NY Slip Op 06305 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A court may sanction a party for willfully failing to comply with discovery, pursuant to CPLR 3216.

Students should note that sanctions include precluding the party from producing in evidence designated things or items of testimony.

Case: Raville v. Elnomany, NY Slip Op 06302 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Torts.

Motion practice.

Practice point: Statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, if they are material and pertinent to the issue.

Students should note that proceedings before a Grievance Committee are quasi-judicial.

Case: Kilkenny v. Law Off. of Cushner & Garvey, LLP, NY Slip Op 06295 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: The court must clearly define for the jury exactly what it has to determine in order to find negligence.

Students should note that the charge, among other things, must state separately the disputed issues.

Case: Altamirano v. Door Automation Corp., NY Slip Op 06283 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: The court may grant a forum non conviens motion on any condition that may be just, pursuant to CPLR 327(a).

Students should note that dismissal could properly be conditioned on a waiver of the foreign forum's advantageous statute of limitations.

Case: Patriot Exploration v. Thompson & Knight, NY Slip Op 06217 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: The court can grant relief not dramatically unlike what was sought in plaintiff's prayer, if there is supporting proof, and if it will not prejudice any party.

Students should note that, under Labor Law § 241(6), liability does not attach to alleged violations of Occupational Safety and Health Administration regulations.

Case: Shaw v RPA Assoc., LLC, NY Slip Op 06238 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: There is no mandatory ministerial duty to enter a default judgment against a defaulting party.

Students should note that, instead, the court must determine whether the supporting facts are sufficient to establish a viable cause of action.

Case: McGee v. Dunn, NY Slip Op 06233 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Motion practice.

Practice point: There is no mandatory ministerial duty to enter a default judgment against a defaulting party.

Students should note that, instead, the court must determine whether the supporting facts are sufficient to establish a viable cause of action.

Case: McGee v. Dunn, NY Slip Op 06233 (2d Dept. 2010)



Monday's issue: Motion practice.

Torts.

Practice point: The Transit Authority owes no duty to protect against a third-person assault, absent a special relationship between Transit and the person assaulted.

Students should note that, to establish a special relationship, there must be evidence of justifiable reliance on Transit's affirmative undertaking to act on plaintiff's behalf.

Case: Frazier v. MABSTOA, NY Slip Op 06229 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Assumption of the risk.

Practice point: A sports participant does not assume the risk of intentional or reckless conduct.

Students should note that the doctrine cannot be invoked when there is evidence of a flagrant rules violation unrelated to the way the game is played, and without a competitive purpose.

Case: Filippazzo v. Kormoski, NY Slip Op 06228 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Motion practice.

Practice point: An affidavit of service constitutes prima facie evidence of proper service.

Students should note, while the sworn denial of receipt generally necessitates an evidentiary hearing, no hearing is required if defendant's affidavit is nothing more than a bare and conclusory denial.

Case: Associates First Capital Corp. v. Wiggins, NY Slip Op 06225 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Assumption of the risk.

Ethics.

Practice point: A felony conviction in another State triggers automatic disbarment if the offense would constitute a felony under New York's Penal Law, pursuant to Judiciary Law § 90[4][e].

Students should note that the foreign felony need not be a mirror image of the New York felony, but must be essentially similar.

Case: Matter of Mahler, NY Slip Op 06152 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: There is a presumption that the public is entitled to access to judicial proceedings and court records.

Students should note that a court is empowered to seal court records, pursuant to section 216.1(a) of the Uniform Rules for Trial Courts.

Case: Mosallem v. Berenson, NY Slip Op 06150 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Ethics.

Motion practice.

Practice point: An issue decided in a criminal proceeding may be given preclusive effect in a subsequent civil action, if there is an identity of issue and if there was a full and fair opportunity to contest the decision.

Students should note that the imposition of a constructive trust requires a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment.

Case: Abacus Fed. Savings Bank v. Lim, NY Slip Op 06143 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: To disqualify counsel, movant must prove, among other things, a prior attorney-client relationship with opposing counsel.

Students should note that representation of a business entity does not make the firm counsel to an individual member, absent the assumption of an affirmative duty to represent.

Case: Campbell v. McKeon, NY Slip Op 06148 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: To disqualify counsel, movant must prove, among other things, a prior attorney-client relationship with opposing counsel.

Students should note that representation of a business entity does not make the firm counsel to an individual member, absent the assumption of an affirmative duty to represent.

Case: Campbell v. McKeon, NY Slip Op 06148 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Real Estate Law.

Practice point: There is no liability for a seller's failing to disclose information, in an arms length transaction, absent active concealment of a defective condition.

Students should note that even proof of active concealment is ineffective if the buyer should have known of the defect.

Case: Laxer v. Edelman, NY Slip Opinion 06159 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Property.

Practice point: The possession of land without any claim of right, no matter how long it may be continued, gives no title.

Students should note that reliance on the doctrine of "practical location" requires proof of a clear demarcation of a boundary line.

Case: Estate of Becker v. Murtagh, NY Slip Op 06157 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Real Estate Law.

Motion practice.

Practice point: On a party's death, the court no longer has jurisdiction to conduct proceedings, and the action is stayed as to decedent pending substitution of a legal representative.

Students should note that any determination rendered absent that substitution is a nullity, pursuant to CPLR 1015, 1021.

Case: Stancu v. Oh, NY Slip 05754 (2d Dept. 2010)

Here is the opinion.

Monday’s issue: Property.

Torts.

Practice point: A libel action must allege statements of fact, not opinion.

Students should note that an opinion statement is not actionable even if it is accompanied by a recitation of facts on which it is based.

Case: Halstead v. Strauss, NY Slip Op 05731 (2d Dept. 2010)

Here is the opinion.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A motion to dismiss based on CPLR 3211(a)(1) requires documentary evidence refuting plaintiff's factual allegations, establishing a defense as a matter of law.

Students should note that to be considered documentary, evidence must be unambiguous and of undisputed authenticity.

Case: Springer v. Almontaser, NY Slip Op 06081 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Labor Law.

Practice point: A separate prime contractor is not liable under for injuries to the employees of other contractors where there is no privity of contract.

Students should note, however that where that contractor has been delegated authority to supervise and control the work, the contractor becomes a statutory agent of the owner or general contractor.

Case: Barrios v. City of New York, NY Slip Op 06072 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A defendant looking to amend the answer to allege a counterclaim is not required to submit evidentiary proof.

Students should note that the tort of trade libel or injurious falsehood requires the knowing publication of false and derogatory statements calculated to prevent others from dealing with the plaintiff

Case: Banco Popular N. Am. v. Lieberman, NY Slip Op 06067 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Labor Law.

Landlord-Tenant Law.

Practice point: To establish constructive eviction, a tenant must prove wrongful acts that deprived him of the beneficial use and enjoyment of the premises.

Students should note that partial actual eviction requires that the tenant be physically prevented from using a portion of the premises

Case: Pacific Coast Silks, LLC v. 247 Realty, LLC, NY Slip Op 05887 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Practice point: At a fact-finding hearing in an abuse and/or neglect proceeding pursuant to Family Court Act article 10, the standard is a preponderance of the evidence.

Students should note that there is a religious exemption from the Public Health Law's immunization requirements, pursuant to Public Health Law § 2164(9)

Case:Matter of Isaac J., NY Slip Op 05997 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Landlord-Tenant Law.

Motion practice.

Practice point: There is no cause of action sounding in deceptive acts and practices, pursuant to General Business Law § 349, arising from a private contractual dispute.

Students should note that there is no cause of action for unjust enrichment if there is a valid agreement.

Case: Merin v. Precinct Developers, LLC, NY Slip Op 05691 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Family Law.

Motion practice.

Practice point: A certificate of acknowledgement attached to an instrument such as a deed raises a rebuttable presumption of due execution.

Students should note that if a deposition transcript is not sent to the deponent for review, pursuant to CPLR 3116(a), the transcript is inadmissible at trial.

Case: Moffett v. Gerardi, NY Slip Op 05990 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Absent evidence that defendant willfully and contumaciously failed to appear for deposition, the court will not strike the answer.

Students should note that the appropriate remedy is to preclude defendant from offering any testimony at trial.

Case: Cobenas v. Ginsburg Dev. Cos., LLC, NY Slip Op 05718 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Torts.

Practice point: The doctrine of primary assumption of the risk includes those risks associated with the construction of the playing surface, and any open and obvious condition on it.

Students should note that the mere fact that defendant could have provided safer conditions is beside the point where the risk is open and obvious.

Case: Bendig v. Bethpage Union Free School Dist., NY Slip Op 05715 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Motion practice.

Practice point: In deciding a motion, the court may search the record and award summary judgment to a nonmoving party, pursuant to CPLR 3212(b).

Students should note that, in the interest of justice, a court may consider newly submitted evidence in a motion to renew, even if it was available in the prior motion.

Case: Atiencia v. Mbbco Ii, LLC, NY Slip Op 05872 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Contracts.

Practice point: Where the language is not clear enough to enforce an obligation to indemnify, the court will not rewrite the contract to supply an obligation the parties themselves did not specify.

Students should note that attorney's fees are incidents of litigation, and a prevailing party may not collect except by express agreement, statute or court rule.

Case: Adesso Café Bar & Grill, Inc. v. Burton, NY Slip Op 05710 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Employment Law.

Practice point: Workers' compensation is the exclusive remedy for damages resulting from an injury arising out of and in the course of employment.

Students should note that if the injured worker elects to receive Workers' Compensation benefits from the general employer, there is no action at law against a special employer, pursuant to Workers' Compensation Law § 29[6].

Case: Franco v. Kaled Mgt. Corp., NY Slip Op 05512 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Contracts.

Happy Holiday.

The courts are closed today, and so there is no post.

Best wishes for a safe and happy Independence Day.

Special thanks to the men and women whose service and sacrifice has helped to keep us free.

Corporations.

Practice point: A partnership is an association of two or more persons to carry on as co-owners a business for profit, pursuant toPartnership Law § 10[1].

Students should note that if there is no written agreement between the parties, the court will decide whether there is a partnership based on the conduct, intention, and relationship between the parties.

Case: Czernicki v. Lawniczak, NY Slip Op 05503 (2d Dept. 2010)

Here is the opinion.

Tuesday's issue: Employment Law.

Labor Law.

Practice point: Section 200 codifies an owner or contractor's common-law duty to maintain a safe construction site.

Students should note that if plaintiff was injured as the result of an allegedly dangerous condition at the work site, liability may attach if defendant had control over the work site and either created or had actual or constructive notice of the dangerous condition.

Case: Bruno v. Board of Educ. of Cent. School Dist. #5, NY Slip Op 05498 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Corporations.

Labor Law.

Practice point: Section 200 codifies an owner or contractor's common-law duty to maintain a safe construction site.

Students should note that if plaintiff was injured as the result of an allegedly dangerous condition at the work site, liability may attach if defendant had control over the work site and either created or had actual or constructive notice of the dangerous condition.

Case: Bruno v. Board of Educ. of Cent. School Dist. #5, NY Slip Op 05498 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Corporations.

Labor Law.

Practice point: Section 200 codifies an owner or contractor's common-law duty to maintain a safe construction site.

Students should note that if plaintiff was injured as the result of an allegedly dangerous condition at the work site, liability may attach if defendant had control over the work site and either created or had actual or constructive notice of the dangerous condition.

Case: Bruno v. Board of Educ. of Cent. School Dist. #5, NY Slip Op 05948 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Corporations.

Legal malpractice.

Practice point: A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement was effectively compelled by counsel's mistakes.

Students should note if plaintiff's claim of breach of fiduciary duty is essentially a claim of malpractice, it is governed by the malpractice standard, namely, that, but for counsel's action, plaintiff would have prevailed in the underlying action.

Case: Boone v. Bender, NY Slip Op 05497 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Labor Law.

Family Law.

Practice point: New York does not recognize common-law marriages contracted within the state, pursuant to Domestic Relations Law § 11.

Students should note that a common-law marriage contracted in another state will be recognized as valid here if it is valid there.

Case: Baron v. Suissa, NY Slip Op 05495 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Legal malpractice.

Motion practice.

Practice point: To vacate a default, defendant must demonstrate a reasonable excuse and a potentially meritorious defense, pursuant to CPLR 5015[a][1].

Students should note that it is a reasonable excuse if defendant had a good faith belief that its interests were being protected by the insurer that had defended in a related matter.

Case: Gerdes v. Canales, NY Slip Op 05358 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Family Law.

Employment Law.

Practice point: Without a legitimate employer interest to protect, restrictive covenants are unenforceable.

Students should note that, in such a circumstance, the issue of partial enforcement does not arise.

Case: Allways Elec. Corp. v. Abrams, NY Slip Op 05346 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Motion practice.

Practice point: An order denying a motion to preclude testimony of plaintiff's expert witness or to direct that witness to submit to a Frye hearing is an evidentiary ruling and an advisory opinion.

Students should note that the order is not appealable, either as of right or by leave.

Case: Fontana v. LaRosa, NY Slip Op 05357 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Employment Law.

Torts.

Practice point: A company which agrees to maintain an elevator in safe operating condition may be liable for injuries resulting from a failure to correct a condition of which it knew or should have known.

Students should note that the property owner continues to owe a nondelegable duty to maintain its buildings' elevators in a reasonably safe manner.

Case: Dykes v. Starrett City, Inc., NY Slip Op 05356 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Pursuant to CPLR 3001, the supreme court may render a declaratory judgment as to the rights of the parties to a justiciable controversy.

Students should note that a justiciable controversy requires a real dispute, involving substantial legal interests for which a declaration of rights will have some practical effect.

Case: Chanos v. Madac, LLC, NY Slip Op 05350 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Motion practice.

Practice point: The construction of foreign law is a legal question appropriate for summary resolution.

Students should note that such a motion can be based on expert affidavits interpreting the relevant legal provisions.

Case: Gusinsky v. Genger, NY Slip Op 04931 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Torts.

Practice point: In the case of a rear-end collision, the owner and operator of the front vehicle are entitled to summary judgment on liability unless the following vehicle's driver offers a non-negligent explanation.

Students should note that depositions are not needed since the opponents of the motion had personal knowledge of the facts, pursuant to CPLR 3212[f]).

Case: Avant v. Cepin Livery Corp., NY Slip Op 04924 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Motion practice.

Practice point: Once a medical malpractice defendant has established the absence of any departure from good and accepted practice, plaintiff must submit a physician's affidavit attesting to such a departure and opining that it was a causal competent in the injury.

Students should note that an expert's affidavit containing bare conclusory assertions is insufficient to defeat summary judgment.

Case: Bacani v. Rosenberg, NY Slip Op 04919 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Motion practice.

Practice point: Pursuant to CPLR 5015(a), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just.

Students should note that a claim of financial distress is likely insufficient to justify the exercise of this discretionary power.

Case: Katz v. Marra, NY Slip Op 04957 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Corporations.

Practice point: A limited liability company's organizer is a fiduciary of the investors it solicits to become members, pursuant to Limited Liability Company Law § 203[a][iii]).

Students should note that the fiduciary duty includes the obligation to disclose any interests that might affect the company and its members, including profits that the promoter makes from organizing the company.

Case: Roni LLC v. Arfa, NY Slip Op 04700 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A plaintiff may seek leave to enter a default judgment when a defendant has failed to appear within the time required, pursuant to CPLR 3215(a).

Students should note that there is no requirement, statutory or otherwise, that an answer must be filed with the clerk in order for a defendant to appear in an action.

Case: Goonan v. New York City Transit Authority, NY Slip Op 04742 (2d Dept. 2010)

Here is the opinion

Tomorrow's issue: Corporations.

Conracts.

Practice point: Generally, a contractual provision absolving a party from its own negligence or limiting its liability is enforceable.

Students should note, however, that, as a matter of public policy, a contracting party may not insulate itself from damages caused by grossly negligent conduct.

Case: Goldstein v. Carnell Associates, Inc., NY Slip Op 04741 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Trusts and Estates.

Practice point: If the signature on a power of attorney is forged, the document executed by the purported attorney-in-fact is void.

Students should note that if a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser receives nothing.

Case: First Natl. Bank of Nev. v. Williams, NY Slip Op 04737 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Contracts.

Motion practice.

Practice point: Pursuant to CPLR 3211(b), a party may move to dismiss a defense on the ground that a defense is not stated, or that it has no merit..

Students should note that an agent who signs on behalf of a principal, without disclosing the principal's identity or legal status, may be held individually liable on the contract.

Case: Courthouse Corporate Ctr. LLC v. Schulman, NY Slip Op 04728 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Trusts and Estates.

Statutes of limitations.

Practice point: The time period for fraud is the greater of six years from the cause of action's accrual, or two years from the time the plaintiff discovered, or could have discovered, the fraud, pursuant to CPLR 213[8].

Students should note that an action alleging unjust enrichment and seeking a constructive trust must be commenced within six years of the wrongful act giving rise to a duty of restitution.

Case: Coombs v. Jervier, NY Slip Op 04727 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Products liability.

Practice point: A party injured as a result of a defective product may seek relief against the product manufacturer or others in the chain of distribution.

Students should note that a product may be defective because of a mistake in the manufacturing process; because of a defective design; or because the manufacturer failed to provide adequate warnings regarding the product's use.

Case: Rabon-Willimack v. Robert Mondavi Corp., NY Slip Op 04354 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Statutes of limitation.

Motion practice.

Practice point: The court may determine that a pattern of noncompliance with discovery orders is so significant that the severe sanction of striking the answer is appropriate.

Students should note that a court need not issue a "last chance" warning or order before exercising its discretion to strike a pleading.

Case: Fish & Richardson, P.C. v. Schindler, NY Slip Op 04465 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Products liability.

Motion practice.

Practice point: The court will deny leave to amend an answer to assert counterclaims that are merely restatements of previously dismissed counterclaims, or that allege conclusory, speculative or time-barred claims.

Students should note that the business judgment rule can only be defeated by nonconclusory allegations of bad faith, a conflict of interest or self-dealing.

Case: Kassover v. PVP-GCC Holdingco II LLC, NY Slip Op 04453 (1st Dept. 2010).

Here is the opinion.

Tomorrow's issue: Motion practice.

Administrative Law.

Practice point: A person who objects to an agency's action must exhaust the administrative remedies before litigating.

Students should note that this rule does not apply if the action is challenged as unconstitutional, unless the claim relies on factual issues that are reviewable administratively.

Case: Sumner v. Hogan, NY Slip Op 04446 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: The court may require plaintiff to post an undertaking when granting a preliminary injunction to permit the parties to engage in mediation.

Students should note that defendant may claim legal fees even if there is a stipulation that each party will bear its own costs and expenses.

Case: Golub v. Board of Mgrs.of Greentree at Murray Hill, NY Slip Op 04247 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Administrative Law.

Happy Memorial Day.

Today is a court holiday, and so there is no post.

To our veterans of every time and stripe, thank you for your service.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A process server's successive attempts to serve defendant personally at various times of the day when it could be reasonably expected that he would be at home satisfies the due diligence requirement of CPLR 308(4), allowing nail-and-mail service.

Students should note that, if the front door of defendant's apartment is accessible from the street, service on the building's doorman is not required.

Case: Farias v. Simon, NY Slip Op 04246 (1st Dept. 2010)

Here is the opinion.

Tuesday's issue: Motion practice.

Torts.

Practice point: With the exception of a Dram Shop Act violation, the standard of care for a nightclub operator is the same as for any premises operator.

Students should note that, under the Dram Shop Acts, codified at General Obligations Law § 11-101 and Alcoholic Beverage Control Law § 65, liability requires a commercial sale of alcohol.

Case: Zamore v. Bar None Holding Co., NY Slip Op 04275 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion Practice.

Employment Law.

Practice point: A retaliatory firing claim will be dismissed if plaintiff does not rebut defendants' showing of a legitimate, nondiscriminatory reason for the termination.

Students should note that a hostile work environment claim will be dismissed if plaintiff does not establish that the firm did not take remedial action, or, if there was such action, does not raise factual issues regarding its efficacy.

Case: Clark v. Morelli Ratner PC, NY Slip Op 04264 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Motion practice.

Practice point: As distinguished from issue preclusion and claim preclusion, the law of the case addresses the potentially preclusive effect of judicial determinations made in the course of a single litigation before final judgment.

Students should note that, absent a showing of subsequent evidence or change of law, an appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court.

Case: Roddy v. Nederlander Producing Co. of Am., Inc., NY Slip Op 04261 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Employment Law.

School Law.

Practice point: During school hours, the supervisory standard is that of the reasonably prudent parent, but the lesser standard of a reasonable and prudent person applies to a student's voluntary participation in an intramural or extracurricular school sport.

Students should note that the duty to protect is a function of the school's physical custody and control over its students, and so once a student leaves the school's orbit of authority, the custodial duty ceases.

Case: Hansen v. Bath & Tennis Marina Corp., NY Slip Op 03872 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Contracts.

Practice point: General principles governing option agreements require strict compliance with the terms setting forth the time and manner of the option's exercise.

Students should note that waiver of an established contractual right requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable.

Case: Matter of Lamberti v. Angiolillo, NY Slip Op 03846 (1st Dept. 2010)

Here is the opinion.

Monday's issue: School Law.

Trusts and Estates.

Practice point: In order for assets to become part of a trust, pursuant to EPTL 7-1.18, the grantor must actually transfer the assets.

Students should note that the mere recital of assignment, holding or receipt is insufficient for transferring the assets.

Case: Matter of Bishop v. Maurer, NY Slip Op 03840 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Contracts.

Torts.

Practice point: Failure to read the owner's manual severs the causal connection between an alleged failure to warn and the accident.

Students should note that a manufacturer who sells a product in a defective condition is liable for injuries resulting from its intended use or from its unintended but reasonably foreseeable use.

Case: Reis v. Volvo Cars of North America, Inc., NY Slip Op 03779 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Trusts and Estates.

Family Law.

Practice point: A spousal agreement that is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability.

Students should note that the agreement will not be overturned merely because some of its provisions were one-sided, and simply alleging an unequal division of assets does not establish unconscionability.

Case: Cioffi-Petrakis v. Petrakis, NY Slip Op 03266 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

School Law.

Practice point: Schools are not liable for every thoughtless or careless act by one pupil might injure another.

Students should note that there likely is no liability for an injury caused by an impulsive, unanticipated act, absent prior conduct that would have put a reasonable person on notice to protect.

Case: Armellino v.Thomase, NY Slip Op 03256 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Family Law.

Motion practice.

Practice point: A cause of action sounding in conversion requires a showing of ownership or a superior right of possession, and of defendant's exercise of dominion, to the exclusion of plaintiff's rights.

Students should note that to recover on an alleged personal guarantee, pursuant to General Obligations Law § 5-701(a)(2), there must be a subscribed writing promising to answer for the debt or default.

Case: Schwartz v. Sayah, NY Slip Op 03103 (2d Dept. 2010)

Here is the opinion.

Monday's issue: School Law.

Motion practice.

Practice point: In a legal malpractice action, an attorney's affirmation may suffice as expert opinion as to the adequacy of professional services.

Students should note that to succeed on a motion to dismiss, defendant must establish that plaintiff cannot prove at least one essential element of the cause of action.

Case: Scartozzi v. Potruch, NY Slip Op 03102 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A certification order warning that dismissal will result from failure to file a note of issue within 90 days is of the same effect as a 90-day notice pursuant to CPLR 3216.

Students should note that plaintiff must either timely file or move to extend the time.

Case: Polizzi v. Burke, NY Slip Op 03096 (2d Dept. 2010)

The opinion is here .

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: An Article 78 proceeding is summary in nature, and so a summary judgment motion going to the petition's merit is unnecessary.

Students should note that, pursuant to Civil Service Law § 75(3), an employee may be suspended without pay for a period of not more than thirty days, pending a hearing on a charge of incompetency or misconduct.

Case:  Nabors v. Town of Somers, NY Slip Op 03089 (2d Dept. 2010

Here is the opinion.

Tomorrow's issue: Motion practice.

Corporations.

Practice point: Directors and officers, in the performance of their duties, have a fiduciary relationship to the corporation, and owe the corporation their undivided loyalty.

Students should note that, without consent, an officer or director may not divert and exploit for personal benefit an opportunity that should be deemed an asset of the corporation.

Case: Morales v. Galeazzi, NY Slip Op 03086 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.