Summary judgment motions.
Practice point: A party should be given a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment.
Case: Richardson v. New York City Transit Authority, NY Slip Op 04675 (2d Dept. 2008)
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July 17, 2008
Property.
Practice point: The title owner of property encumbered by a mortgage or a tax lien has the right to redeem the property at any time prior to the actual sale under a judgment of foreclosure.
Case: NYCTL 1996-1 Trust v. Moore, NY Slip Op 04667 (2d Dept. 2008)
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Practice point: The title owner of property encumbered by a mortgage or a tax lien has the right to redeem the property at any time prior to the actual sale under a judgment of foreclosure.
Case: NYCTL 1996-1 Trust v. Moore, NY Slip Op 04667 (2d Dept. 2008)
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July 16, 2008
Statute of limitations.
Practice point: Actions for malpractice against nonmedical professionals are governed by the three-year statute of limitations, pursuant to CPLR 214(a)(6).
Case: M.G. McLaren, P.C. v. Massand Eng'g, L.S., P.C., NY Slip Op 04661 (2d Dept. 2008)
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Practice point: Actions for malpractice against nonmedical professionals are governed by the three-year statute of limitations, pursuant to CPLR 214(a)(6).
Case: M.G. McLaren, P.C. v. Massand Eng'g, L.S., P.C., NY Slip Op 04661 (2d Dept. 2008)
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July 15, 2008
Specific performance.
Practice point: When requiring specific performance on a contract for the sale of real property, a seller's time-of-the-essence letter is a nullity unless it gives the purchaser sufficient time to perform.
Case: Iannucci v. 70 Wash. Partners, LLC, NY Slip Op 04653 (2d Dept. 2008)
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Practice point: When requiring specific performance on a contract for the sale of real property, a seller's time-of-the-essence letter is a nullity unless it gives the purchaser sufficient time to perform.
Case: Iannucci v. 70 Wash. Partners, LLC, NY Slip Op 04653 (2d Dept. 2008)
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July 14, 2008
Labor Law.
Practice point: Pursuant to Labor Law § 240(1), the failure to provide any protective devices for workers establishes, as a matter of law, an owner's or contractor's liability.
Case: Hamilton v. Kushnir Realty, NY Slip Op 04650 (2d Dept. 2008)
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Practice point: Pursuant to Labor Law § 240(1), the failure to provide any protective devices for workers establishes, as a matter of law, an owner's or contractor's liability.
Case: Hamilton v. Kushnir Realty, NY Slip Op 04650 (2d Dept. 2008)
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July 11, 2008
Non-compete agreements.
Practice point: Covenants not to compete will be enforced only if they are reasonably limited as to time, geographic area and scope; are necessary to protect the employer's legitimate interests; are not harmful to the public; and are otherwise not unduly burdensome.
Case: Ricca v. Ouzounian, NY Slip Op 04852 (2d Dept. 2008)
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Practice point: Covenants not to compete will be enforced only if they are reasonably limited as to time, geographic area and scope; are necessary to protect the employer's legitimate interests; are not harmful to the public; and are otherwise not unduly burdensome.
Case: Ricca v. Ouzounian, NY Slip Op 04852 (2d Dept. 2008)
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July 10, 2008
Breach of contract.
Practice point: Absent a duty on which tort liability might be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty.
Case: Rakylar v. Washington Mutual Bank, NY Slip Op 04850 (2d Dept. 2008)
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Practice point: Absent a duty on which tort liability might be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty.
Case: Rakylar v. Washington Mutual Bank, NY Slip Op 04850 (2d Dept. 2008)
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July 9, 2008
School law.
Practice point: Schools are not strictly liable for every thoughtless or careless act by which one student may injure another. To recover for injuries caused by another student, a plaintiff must establish that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could reasonably have been anticipated.
Case: Paca v. City of New York, NY Slip Op 04848 (2d Dept. 2008)
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Practice point: Schools are not strictly liable for every thoughtless or careless act by which one student may injure another. To recover for injuries caused by another student, a plaintiff must establish that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could reasonably have been anticipated.
Case: Paca v. City of New York, NY Slip Op 04848 (2d Dept. 2008)
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July 8, 2008
Mechanic's liens.
Practice point: In order to maintain and enforce a mechanic's lien, a plaintiff must demonstrate that the defendant consented to the work performed on its property, pursuant to Lien Law § 3. The consent cannot be mere acquiescence and benefit, but must be some affirmative act or course of conduct establishing confirmation.
Case: Modern Era Construction, Inc. v. Shore Plaza, LLC, NY Slip Op 04847 (2d Dept. 2008)
Click here for the uncorrected opinion.
Practice point: In order to maintain and enforce a mechanic's lien, a plaintiff must demonstrate that the defendant consented to the work performed on its property, pursuant to Lien Law § 3. The consent cannot be mere acquiescence and benefit, but must be some affirmative act or course of conduct establishing confirmation.
Case: Modern Era Construction, Inc. v. Shore Plaza, LLC, NY Slip Op 04847 (2d Dept. 2008)
Click here for the uncorrected opinion.
July 7, 2008
Attorney's fees.
Practice point: Where a lease provision gives a landlord the right to recover attorney's fees, those fees must be reasonable, considering factors such as time spent on the case, the difficulties involved, the nature of the services rendered, the amount in dispute, the attorney's professional standing and the results obtained.
Case: Miller Realty Assoc. v. Amendola, NY Slip Op 04846 (2d Dept. 2008)
Click here for the uncorrected opinion.
Practice point: Where a lease provision gives a landlord the right to recover attorney's fees, those fees must be reasonable, considering factors such as time spent on the case, the difficulties involved, the nature of the services rendered, the amount in dispute, the attorney's professional standing and the results obtained.
Case: Miller Realty Assoc. v. Amendola, NY Slip Op 04846 (2d Dept. 2008)
Click here for the uncorrected opinion.
July 3, 2008
Contracts.
Practice point: While a contract may be voided and a party may recover damages when it establishes that it was compelled to agree because of a wrongful threat by the other party, there is no actionable duress where the alleged menace was to exercise a legal right.
Case: Madey v. Carmen, NY Slip Op 04844 (2d Dept. 2008)
Click here for the uncorrected opinion.
Practice point: While a contract may be voided and a party may recover damages when it establishes that it was compelled to agree because of a wrongful threat by the other party, there is no actionable duress where the alleged menace was to exercise a legal right.
Case: Madey v. Carmen, NY Slip Op 04844 (2d Dept. 2008)
Click here for the uncorrected opinion.
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