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.