Motion practice.

Practice point: Where a plaintiff fails to seek leave to enter a default judgment within one year after the default, the action is deemed abandoned, pursuant to CPLR 3215[c].

Practitioners should note that, to avoid dismissal of its complaint, a plaintiff must demonstrate both a reasonable excuse for the delay in seeking a default judgment and the existence of a meritorious cause of action.

Case: Butindaro v. Grinberg, NY Slip Op 10574 (2d Dept. 2008)

The opinion is here.

Tomorrow’s issue: Construction Law.

School Law.

Practice point: Service of a timely notice of claim is a condition precedent to a claim against a school district on an action alleging breach of contract or promissory estoppel based on a contract.

Practitioners should note that compliance with this condition precedent must be alleged in the complaint.

Case: Boakye-Yiadom v. Roosevelt Union Free School Dist., NY Slip Op 10572 (2d Dept. 2008)

The opinion is here.

Tomorrow’s issue: Motion practice.

The business judgment rule.

Practice point: The rule does not foreclose inquiry into the disinterested independence of the board members chosen to make a corporate decision on the board’s behalf.

Practitioners should note that the rule shields such directors only if they possess a disinterested independence and do not have dual relations that prevent an unprejudicial exercise of judgment.

Case: Allannic v. Levin, NY Slip Op 10212 (1st Dept. 2008)

The opinion is here.

Tomorrow's issue: School Law.

Motion practice.

Practice point: Sanctions may result from a motion to vacate a default judgment when, having had ample opportunity to avoid the judgment’s entry, movant failed to demonstrate either a reasonable excuse for the default or a meritorious defense to the counterclaims asserted.

Practitioners should note that a default is considered intentional when a party takes no steps to vacate it until after the judgment has been entered.

Case: Melnick v. Khoroushi, NY Slip Op 10206 (1st Dept. 2008)

The opinion is here.

Monday's issue: The business judgment rule.

Labor Law.

Practice point: In a § 241(6) action, it must be demonstrated that plaintiff’s injuries were proximately caused by a violation of an Industrial Code regulation that is applicable to the circumstances of the accident.

Practitioners should note the inapplicability of 2 NYCRR 23-8.1(f)(2)(i), which deals with sudden acceleration and deceleration of loads during hoisting, when, according to plaintiff's deposition testimony, the accident occurred after the hoisting operations was completed, and when, based on plaintiff's description of the accident, compliance with the provision would not have prevented the beam from being inadvertently picked up or subsequently dropped onto him.

Case: Decaire v. New York City Health & Hosps. Corp., NY Slip Op 10115 (2d Dept. 2008)

The opinion is here.

Tomorrow’s issue: Motion practice.

Prejudgment interest.

Practice point: In an action to recover damages for breach of contract, the court may award a plaintiff prejudgment interest at the statutory rate of 9% per year, pursuant to CPLR 5001[a], 5004.

Practitioners should note that the interest will be computed from the earliest ascertainable date on which there was a cause of action, or from a single reasonable intermediate date, pursuant to CPLR 5001[b].

Case: Baer v. Anesthesia Assoc. of Mount Kisco, LLP, NY Slip Op 10110 (2d Dept. 2008)

The opinion is here.

Tomorrow's issue: Labor Law.

Law of the case.

Practice point: This doctrine is based on the fundamental principle that a judge may not review or overrule an order of another judge of coordinate jurisdiction in the same action or proceeding.

Practitioners should note that the principle does not apply where a prior order was issued by a Support Magistrate in a different proceeding.

Case: Barr v. Cannata, NY Slip Op 10109 (2d Dept. 2008)

The opinion is here.

Tomorrow’s issue: Prejudgment interest.

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.