Evidence.

Practice point: It was not an improvident exercise of the court's discretion to preclude plaintiff's expert from testifying to 15 days of alleged pain and suffering where, until the eve of trial, and without any explanation for lateness, plaintiff led defendants to believe that her expert would opine that she experienced 10 minutes of pain and suffering.

Student note: Nor did the trial court err in allowing defendants to introduce evidence of decedent's character, including a prior guilty plea to a shoplifting offense. Plaintiff sought to recover damages for loss of the "intellectual, moral, and physical guidance" incurred due to the loss of plaintiff as a parent to her daughter. This evidence is relevant to such a claim. In any event, plaintiff's counsel opened the door to evidence of decedent's shoplifting by affirmatively placing her character in issue in the opening statement.

Case: Sanchez v. City of New York, NY Slip Op 05787 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Attorney’s fees in a matrimonial matter.

Dismissal for failure to state a cause of action.

Practice point: A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint, pursuant to CPLR 3211[c].

Student note: When evidentiary material is considered, and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it has been shown that a material fact as offered by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it, the motion should be denied.

Case: Jannetti v. Whelan, NY Slip Op 05726 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Evidence.

Rear-end collisions.

Practice point: A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision.

Student note: Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation.

Case: Hauswirth v. Transcare N.Y., Inc., NY Slip Op 05723 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Dismissal for failure to state a cause of action.

Warranty of habitability.

Practice point: In the absence of fraud or a covenant, a commercial lessor does not represent that the premises are tenantable and may be used for the purpose for which they are apparently intended.

Student note: The implied warranty of habitability applies only to residential lease space, pursuant to Real Property Law § 235-b.

Case: Disunno v. WRH Props., LLC, NY Slip Op 05719 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Rear-end collisions.

Judicial review of arbitration awards.

Practice point: Judicial review of arbitration awards is extremely limited.

Student note: The award can be vacated pursuant to CPLR 7511(b)(1)(iii) if it is clearly violative of a strong public policy, if it is totally or completely irrational, or if it manifestly exceeds a specific, enumerated limitation on the arbitrator's power. In addition, it may be vacated if the court finds that a party's rights were prejudiced by corruption, fraud or misconduct in procuring the award, pursuant to CPLR 7511[b][1][i].

Case: Matter of Cusimano v. Strianese Family Ltd. Partnership, NY Slip Op 05633 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Warranty of habitability.

Homeowners' liability under the Labor Law.

Practice point:  Labor Law §§ 240 and 241 provide an exemption for owners of single and two-family houses, and liability can only be imposed where the homeowner directs or controls the work being performed.

Student note: "Direction and control" of the work is strictly construed to mean that the homeowner oversees the method and manner of the work being performed.

Case: Tomecek v. Westchester Additions & Renovations, Inc., NY Slip Op 05624 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Judicial review of arbitration awards.

Constructive trusts.

Practice point: In order to obtain the remedy of a constructive trust, a plaintiff generally is required to demonstrate four factors: (1) a fiduciary or confidential relationship between the parties; (2) a promise; (3) a transfer of some asset in reliance upon the promise; and (4) unjust enrichment flowing from the breach of the promise.

Student note: To achieve equity and avoid unjust enrichment, the courts apply these factors flexibly rather than rigidly.

Case: Mei Yun Chen v. Mei Wan Kao, NY Slip Op 05616 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Homeowners’ liability under the Labor Law.

Making out a fraud claim.

Practice point: The cause of action will not lie where the only fraud claimed arises from the breach of a contract. A mere misrepresentation of an intent to perform under the contract is insufficient to sustain a cause of action to recover damages for fraud.

Student note: Conversely, a misrepresentation of material fact that is collateral to the contract and serves as an inducement for the contract is sufficient to sustain the cause of action.

Case: Gorman v. Fowkes, NY Slip Op 05614 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Constructive trusts.

Petitioning for judicial dissolution.

Practice point: BCL § 1104-a gives holders of 20% or more of the outstanding voting shares of a close corporation the right to petition for judicial dissolution as a remedy for illegal, fraudulent or oppressive conduct. However, pursuant to § 1118(a), the petition triggers the right of any other shareholder or shareholders or the corporation to elect to purchase the petioners' shares at their fair value.

Student note: This election, once made, is irrevocable.

Case: Ferolito v. Vultaggio, NY Slip Op 05707 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Making out a fraud claim.

Unlicensed home-improvement contractors.

Practice point: Administrative Code of the City of New York § 20-387 forbids the soliciting, canvassing, selling, performance, or obtaining of "a home improvement contract as a contractor or salesperson from an owner without a license therefor." Accordingly, an unlicensed home improvement contractor cannot recover for services rendered either on the contract or in quantum meruit.

Student note: This provision of the Administrative Code does not itself provide grounds for plaintiff to recoup fees already paid, because the law renders the contract rescinded and generally the parties should be left as they are. However, plaintiff retains the right at common law to seek restitution for payments she previously made for work that defendant failed to perform or for defective work.

Case: Wildenstein v. 5H & Co., Inc., NY Slip Op 05702. (1st Dept. 2012).

Here is the decision.

Monday’s issue: Petitioning for judicial dissolution.

Serving a late notice of claim.

Practice point: Service of a late notice of claim without leave of court is a nullity.

Student note: Moreover, the failure to seek a court order excusing such lateness within one year and 90 days after accrual of the claim requires dismissal of the action.

Case: Plaza v. New York Health and Hosps. Corp., NY Slip Op 05598 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Unlicensed home-improvement contractors.