Premium fees.
Practice point: An attorney's premium fee is enforceable if the retainer agreement satisfies the plain language and specificity requirements of 22 NYCRR 1400.3(8). The client must be advised beforehand as to how such a fee will be calculated, e.g., as a flat amount, a fixed percentage or a reasonable percentage of the total hourly charges incurred.
Case: Sheresky Aronson & Mayefsky, LLP v.Whitmore, NY Slip Op 06175 (1st Dept. 2008)
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July 21, 2008
Privacy law.
Practice point: New York State does not recognize the common-law tort of invasion of privacy except to the extent it comes within the ambit of Civil Rights Law §§ 50 and 51. These statutes protect against the appropriation of a plaintiff's name or likeness for a defendant's benefit and create a cause of action in favor of any person whose name, portrait or picture is used for advertising purposes or for trade without the plaintiff's consent.
Case: Farrow v. Allstate Insurance Co., NY Slip Op 06283 (2d Dept. 2008)
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Practice point: New York State does not recognize the common-law tort of invasion of privacy except to the extent it comes within the ambit of Civil Rights Law §§ 50 and 51. These statutes protect against the appropriation of a plaintiff's name or likeness for a defendant's benefit and create a cause of action in favor of any person whose name, portrait or picture is used for advertising purposes or for trade without the plaintiff's consent.
Case: Farrow v. Allstate Insurance Co., NY Slip Op 06283 (2d Dept. 2008)
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July 18, 2008
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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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.
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