Attorneys as parties to an action.

Practice point: An attorney who is a party to an action must support a pleading with an affidavit, notwithstanding CPLR 2106, which otherwise allows an attorney to submit an affirmation.

Practitioners should note that this deficiency will be fatal to the pleading.

Case: Finger v. Saal, NY Slip Op 09027 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: A plaintiff who pleads the defense of failure to state a cause of action will not win dismissal in the absence of a motion.

Practitioners should note that this motion may be made at any time.

Case: Butler v. Catinella, NY Slip Op 09018 (2d Dept. 2008)

The opinion is here.

Construing insurance policies.

Practice point: If the policy on its face is reasonably susceptible of only one meaning, a court is not free to alter the agreement. If there is any ambiguity, however, it must be construed in favor of the insured and against the insurer.

Practitioners should note that for an insurer to prevail on its interpretation of an ambiguous term, the insurer must demonstrate, in addition to reasonability, that its interpretation is the only fair one.

Case: Antoine v. City of New York, NY Slip Op 09010 (2d Dept. 2008)

The opinion is here.

Disclosure.

Practice point: While CPLR 3101(a) provides for full disclosure of whatever is material and necessary to prosecute an action, unlimited disclosure is not permitted.

Practitioners should note that, pursuant to CPLR 3103(a), a court may deny, limit, condition or regulate the use of any disclosure device so as to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person.

Case: Lacqua v. Staten Is. Univ. Hosp., NY Slip Op 08712 (2d Dept. 2008)

The opinion is here.

Snow and ice removal.

Practice point: An owner of property abutting a public sidewalk is not liable for pedestrian injuries arising out of the failure to remove snow and ice which naturally accumulates on the sidewalk, unless a statute or ordinance specifically imposes tort liability for not doing so.

Practitioners should note that, even absent such a statute or ordinance, there might be liability if the owner, or someone acting on the owner’s behalf, undertakes snow and ice removal efforts which make the naturally-occurring conditions more hazardous. The failure to remove all the snow and ice from the sidewalk does not constitute negligence.

Case: Cruz v. County of Nassau, NY Slip Op 08699 (2d Dept. 2008)

The opinion is here.

Constructive trusts.

Practice point: A cause of action to impose a constructive trust is governed by a six-year statute of limitations, which begins to accrue on the happening of the wrongful act giving rise to a duty of restitution.

Practitioners should note that, in determining what triggers the statute, wrongfully acquired property is held adversely from the date of acquisition. However, if the constructive trustee wrongfully withholds lawfully acquired property, it is held adversely from the date the trustee breaches or repudiates the agreement to transfer the property.

Case: Auffermann v. Distl, NY Slip Op 08689 (2d Dept. 2008)

The opinion is here.

Happy Thanksgiving.

Best wishes for a happy Thanksgiving to you and your family, and thank you for reading New York Law Notes year-round. We will be back tomorrow with another post.

Defamation.

Practice point: A public official-plaintiff’s claim will be dismissed unless it is alleged that defendant acted with actual malice, which means with knowledge that the statements at issue were false, or with reckless disregard of whether they were false. “Reckless disregard” is a term of art which means a high degree of awareness of probable falsity.

Practitioners should note that a private person-plaintiff may plead the lower standard of gross irresponsibility.

Case: Rivera v. Time Warner Inc., NY Slip Op 08539 (1st Dept. 2008)

The opinion is here.

Equitable actions.

Practice point: If the primary nature of a case is equitable and plaintiff's claimed damages are merely incidental thereto, there is no right to a jury trial, pursuant to CPLR 4101.

Practitioners should note that a counterclaim, even with a demand for damages, also is equitable in nature if it relates directly to the injunctive relief sought by plaintiff’s complaint.

Case: Ingenuit, Ltd. v. Harriff, NY Slip Op 08456 (2d Dept. 2008)

The opinion is here.

Notice of pendency.

Practice point: CPLR 6514(a) requires cancellation of a notice of pendency if service of a summons has not been completed within 30 days after the notice is filed, pursuant to CPLR 6512.

Practitioners should note that in multi-defendant cases, there is sufficient service if it is timely made on any one defendant with an ownership interest in the subject property.

Case: Deans v. Sorid, NY Slip Op 08448 (2d Dept. 2008)

The opinion is here.

Labor Law.

Practice point: Ladders are within the scope of § 200, which is a codification of the common-law duty of property owners and general contractors to provide workers with a safe place to work.

Practitioners should note that liability under the statute is governed by common-law negligence principles.

Case: Chowdhury v. Rodriguez, NY Slip Op 08441 (2d Dept. 2008)

The opinion is here.