Remedies.

Practice point: When a contract for the sale of real property contains a clause specifically setting forth the remedies available to the buyer if the seller is unable to satisfy a stated condition, fundamental rules of contract construction and enforcement require that the buyer's remedies are limited to those expressly provided in the sale contract.

Case: Gindi v Intertrade Internationale Ltd., NY Slip Op 03952 (1st Dept. 2008)

Facts: Paragraph 3 of the rider to the contract of sale provided, in pertinent part, that "[i]f for any reason, except for seller's willful default, the seller shall be unable to convey good and marketable title, subject to and in accordance with this Contract, then the sole obligation of the seller shall be to refund to the purchaser the deposit made hereunder and to reimburse the purchaser for the net cost of title examination." (emphasis added).

There was no evidence of a willful default on the part of defendant, and so plaintiff was not entitled to specific performance of the contract of sale.

Contribution.

Practice point: General Obligations Law § 15-108(c) bars a contribution claim by a settling defendant/third-party plaintiff against a nonsettling third-party defendant.

Case: Negron v. Topelson, NY Slip Op 03717 (1st Dept. 2008)

Ready, willing and able to buy.

Practice point: While a real estate broker will have earned a commission by producing a purchaser who is ready, willing and able to purchase at the seller's terms, the mere signing of a contract does not establish that the buyer is financially able to complete the transaction and meet the purchase price.

Case: F. Richard Wolff & Son, Inc. v. Tutora, NY Slip Op 03583 (2d Dept. 2008)

Experts' statements.

Practice point: An expert's statement put forward by a party in litigation constitutes an informal judicial admission which is admissible against, although not binding upon, the party that submitted it.

Case: Djetoumani v. Transit, Inc., NY Slip Op 03580 (2d Dept. 2008)

A party's failure to testify.

Practice point: A jury may, but is not required to, draw the strongest inference that the opposing evidence permits against a party who fails to testify at trial.

Case: Brown v. City of New York, NY Slip Op 03574 (2d Dept. 2008)

Tortious interference.

Practice point: New York does not recognize a cause of action for tortious interference with a prospective inheritance.

Case: Jacobs v. Kay, NY Slip Op 03710 (1st Dept. 2008)

An independent contractor's duty to warn.

Practice point: In the absence of a contract for routine or systematic maintenance, an independent contractor or repairer has no duty to install safety devices or to inspect or warn of any purported defects.

Case: Ledesma v. Aragona Mgt. Group, NY Slip Op 03694 (1st Dept. 2008)

Indemnification.

Practice point: A party which admits fault is not entitled to common-law indemnification.

Case: Kuhn v. Sugar Reef Inc., NY Slip Op 03501 (1st Dept. 2008)

22 NYCRR 130-1.1[c]

Practice point: Conduct is sanctionable as frivolous if it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.

Case: Newman v. Berkowitz, NY Slip Op 03493 (1st Dept. 2008)

Labor Law § 740

Practice point: This whistleblower's statute prohibits an employer from retaliating against an employee who discloses to a supervisor an employer's activity, policy or practice which is in violation of law, rule or regulation and presents a substantial and specific danger to the public health or safety. To sustain this cause of action, plaintiff must offer proof of an actual violation, and not merely the reasonable belief of a possible violation.

Case: Berde v. North Shore-Long Island Jewish Health System, Inc., NY Slip Op 03409 (2d Dept. 2008)

General Municipal Law § 50-i

Practice point: While infancy automatically tolls the one-year and 90-day statute of limitations for commencing an action against a municipality, infancy alone does not compel the granting of a motion for leave to serve a late notice of claim when the delay is not the product of the infancy.

Case: Arias v. Kings County Hospital Center, NY Slip Op 03407 (2d Dept. 2008)