Contracts.

Practice point: There is no cause of action to recover for breach of the implied covenant of good faith and fair dealing where the alleged breach is intrinsically tied to damages alleged from a breach of the contract itself.

Practitioners should note that a liquidated damages clause must set forth the compensation for any loss or injury flowing from a breach.

Case: Deer Park Enters., LLC v. Ail Sys., Inc., NY Slip Op 09945 (2d Dept. 2008)

The opinion is here.

Tomorrow’s issue: Law of the case.

Promissory notes.

Practice point: In an action involving a promissory note, a plaintiff moving for summary judgment in lieu of a complaint, pursuant to CPLR 3213, establishes prima facie entitlement to judgment as a matter of law by submitting proof that defendant executed the note and defaulted in making the required payments.

Practitioners should note that the right of a direct appeal from an intermediate order terminates with the entry of a judgment in the action.

Case: Cutter Bayview Cleaners, Inc. v. Spotless Shirts, Inc., NY Slip Op 09943 (2d Dept. 2008)

The opinion is here.

Monday’s issue: Contracts.

Happy New Year.

Courts are closed because of the New Year's Day holiday and so there is no post today. Thank you for your support throughout the year just past and best wishes for the year just beginning.

Courts reopen tomorrow and there will be a new post.

Tomorrow's issue: Promissory notes.

Statute of limitations.

Practice point: Parties to a contract may agree to a time-limit for commencing an action which is less than otherwise provided in CPLR 201.

Practitioners should note that in moving to dismiss a complaint as time-barred, pursuant to CPLR 3211(a)(5), there must be a showing that defendant engaged in conduct that induced plaintiff to postpone bringing suit.

Case: Dimmick v. New York Prop. Ins. Underwriting Assn., NY Slip Op 09745 (2d Dept. 2008)

The opinion is here.

Friday's issue: Promissory notes.

Constructive notice.

Practice point: To meet its initial burden on the issue of lack of constructive notice in a slip and fall action, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.

Practitioners should note that defendant must offer more than deposition testimony referring to the typical cleaning regimen.

Case: Birnbaum v. New York Racing Assn., Inc., NY Slip Op 09741 (2d Dept. 2008)

The opinion is here.

Tomorrow's issue: Statute of limitations.

Attorneys' fees.

Practice point: Judiciary Law § 474 sets forth the general rule, namely, that compensation is governed by the attorney-client agreement, express or implied, which is otherwise not restrained by law.

Practitioners should note that, pursuant to CPLR 1207, if the action involves an infant, a judicially-declared incompetent or a conservatee, a court must approve the attorneys’ fees which are specified in a settlement.

Case: White v. Daimler Chrysler Corp., NY Slip Op 09592 (2d Dept. 2008)

The opinion is here.

Tomorrow's issue: Constructive notice.

Privileged communications.

Practice point: A qualified privilege extends to a communication on a subject in which both persons have an interest.

Practitioners should note that the qualified privilege is defeated where a plaintiff can demonstrate that defendant’s communication was not made in good faith but was motivated solely by malice.

Case: Phelan v. Huntington Tri-Village Little League, Inc., NY Slip Op 09576 (2d Dept. 2008)

The opinion is here.

Monday's issue: Attorneys' fees.

Merry Christmas.

Courts are closed because of the Christmas holiday and so there is no post today. Thank you for your support throughout the year and best wishes for a blessed Christmas season.

Courts reopen tomorrow and there will be a new post.

Tomorrow's issue: Privileged communications.

Personal jurisdiction.

Practice point: Failure to serve process leaves the court without personal jurisdiction over a defendant, and all subsequent proceedings are thereby rendered null and void.

Practitioners should note that, pursuant to CPLR 5015(a)(4), a default judgment must be vacated once a movant demonstrates the lack of personal jurisdiction.

Case: Hossain v. Fab Cab Corp., NY Slip Op 09561 (2d Dept. 2008)

The opinion is here.

Personal jurisdiction.

Practice point: Failure to serve process leaves the court without personal jurisdiction over a defendant, and all subsequent proceedings are thereby rendered null and void.

Practitioners should note that, pursuant to CPLR 5015(a)(4), a default judgment must be vacated once a movant demonstrates lack of personal jurisdiction.

Case: Hossain v. Fab Cab Corp., NY Slip Op 09561 (2d Dept. 2008)

The opinion is here.

Labor Law.

Practice point: Painting is a covered activity, pursuant to § 240(1), and, in order to be actionable, it need not be incidental to other specified activities such as construction, repair or alteration.

Practitioners should note that, by itself, a fall from a ladder is insufficient to impose statutory liability. There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing plaintiff's injuries.

Case: Artoglou v. Gene Scappy Realty Corp., NY Slip Op 09542 (2d Dept. 2008)

The opinion is here.