Tortious interference.
Practice point: An agreement terminable at will may be tortiously interfered with through malicious or wrongful conduct.
Case: Smith v. Meridian Tech., Inc., NY Slip Op 05677 (2d Dept. 2008)
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August 1, 2008
Retainer agreements.
Practice point: An attorney's failure to comply with the rules on retainer agreements, pursuant to 22 NYCRR 1215.1, does not preclude the recovery of legal fees for services provided.
Case: Nicoll & Davis LLP v. Ainetchi, NY Slip Op 05763 (1st Dept. 2008)
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Practice point: An attorney's failure to comply with the rules on retainer agreements, pursuant to 22 NYCRR 1215.1, does not preclude the recovery of legal fees for services provided.
Case: Nicoll & Davis LLP v. Ainetchi, NY Slip Op 05763 (1st Dept. 2008)
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July 31, 2008
Disability discrimination.
Practice point: A complaint states a prima facie case of disability discrimination under Executive Law § 296 if the plaintiff suffers from a disability and the disability engendered the behavior for which plaintiff was discriminated against in the terms, conditions, or privileges of plaintiff's employment.
Case: Staskowski v. Nassau Community College, NY Slip Op 06369 (2d Dept. 2008)
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Practice point: A complaint states a prima facie case of disability discrimination under Executive Law § 296 if the plaintiff suffers from a disability and the disability engendered the behavior for which plaintiff was discriminated against in the terms, conditions, or privileges of plaintiff's employment.
Case: Staskowski v. Nassau Community College, NY Slip Op 06369 (2d Dept. 2008)
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July 30, 2008
Appeals as of right.
Practice point: No appeal lies as of right from that part of an order which does not decide a motion made on notice, pursuant to CPLR 5701[a][2].
Case: Mohler v. Nardone, NY Slip Op 06361 (2d Dept. 2008)
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Practice point: No appeal lies as of right from that part of an order which does not decide a motion made on notice, pursuant to CPLR 5701[a][2].
Case: Mohler v. Nardone, NY Slip Op 06361 (2d Dept. 2008)
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July 29, 2008
Expert witness testimony.
Practice point: If the issue of an allegedly unsafe condition is within the common knowledge and experience of jurors, a plaintiff is under no obligation to rebut a defendant’s expert’s conclusions with expert testimony of its own.
Case: Infante v. Jerome Car Wash, NY Slip Op 05364 (1st Dept. 2008)
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Practice point: If the issue of an allegedly unsafe condition is within the common knowledge and experience of jurors, a plaintiff is under no obligation to rebut a defendant’s expert’s conclusions with expert testimony of its own.
Case: Infante v. Jerome Car Wash, NY Slip Op 05364 (1st Dept. 2008)
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July 28, 2008
Negligent parental supervision.
Practice point: New York does not recognize a cause of action based on negligent parental supervision.
Case: Mazza v. Ed Tompkins Plumbing Corp., NY Slip Op 06360 (2d Dept. 2008)
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Practice point: New York does not recognize a cause of action based on negligent parental supervision.
Case: Mazza v. Ed Tompkins Plumbing Corp., NY Slip Op 06360 (2d Dept. 2008)
Click here for the uncorrected opinion.
July 25, 2008
Statute of limitations.
Practice point: Pursuant to CPLR 3211[a][5], a plaintiff who has timely interposed a claim against one defendant may be barred by the statute of limitations from adding another defendant, as a matter of right, pursuant to CPLR 3025[a]; 1003.
Case: Hirsh v. Perlmutter, NY Slip Op 06359 (2d Dept. 2008)
Click here for the uncorrected opinion.
Practice point: Pursuant to CPLR 3211[a][5], a plaintiff who has timely interposed a claim against one defendant may be barred by the statute of limitations from adding another defendant, as a matter of right, pursuant to CPLR 3025[a]; 1003.
Case: Hirsh v. Perlmutter, NY Slip Op 06359 (2d Dept. 2008)
Click here for the uncorrected opinion.
July 24, 2008
Alternative dispute resolution.
Practice point: Arbitration and other alternative procedures for resolving disputes are creatures of contract, and while the law favors such alternatives to litigation, a party will not be denied judicial resolution of a controversy unless there is a governing provision requiring alternative dispute resolution.
Case: FCI Group, Inc. v. City of New York, NY Slip Op 06352 (1st Dept. 2008)
Click here for the uncorrected opinion.
Practice point: Arbitration and other alternative procedures for resolving disputes are creatures of contract, and while the law favors such alternatives to litigation, a party will not be denied judicial resolution of a controversy unless there is a governing provision requiring alternative dispute resolution.
Case: FCI Group, Inc. v. City of New York, NY Slip Op 06352 (1st Dept. 2008)
Click here for the uncorrected opinion.
July 23, 2008
Service.
Practice point: Pursuant to CPLR 317, a defendant who has been served with a summons other than by personal delivery may seek relief from a default upon a showing that it did not receive notice of the summons in time to defend, and that it has a meritorious defense.
Case: Fatima v. Twenty Seven-Twenty Four Realty Corp., NY Slip Op 06284 (2d Dept. 2008)
Click here for the uncorrected opinion.
Practice point: Pursuant to CPLR 317, a defendant who has been served with a summons other than by personal delivery may seek relief from a default upon a showing that it did not receive notice of the summons in time to defend, and that it has a meritorious defense.
Case: Fatima v. Twenty Seven-Twenty Four Realty Corp., NY Slip Op 06284 (2d Dept. 2008)
Click here for the uncorrected opinion.
July 22, 2008
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)
Click here for the uncorrected opinion.
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)
Click here for the uncorrected opinion.
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)
Click here for the uncorrected opinion.
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)
Click here for the uncorrected opinion.
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