Practice point: A defendant waives late service by accepting and retaining the complaint, without objection, and serving an answer with a demand for a bill of particulars and a demand for discovery and inspection, before moving to dismiss pursuant to CPLR 3012(b).
Practitioners should note that no appeal lies from an order denying a motion for leave to reargue.
Case: Betancourt v. Delta Airlines, Inc., NY Slip Op 01600 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
March 18, 2009
March 17, 2009
Labor Law.
Practice point: Owners of one- and two-family homes who do not direct or control the work are statutorily exempt from liability under § 240, which otherwise imposes a nondelegable duty to provide scaffolding and other protection to persons working in construction, excavation, or demolition.
Practitioners should note that the homeowner's exemption does not apply where the construction is effectively a commercial enterprise, such as building a new home for sale.
Case: Andreas v. Catskill Mtn. Lodging, LLC, NY Slip Op 01597 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
Practitioners should note that the homeowner's exemption does not apply where the construction is effectively a commercial enterprise, such as building a new home for sale.
Case: Andreas v. Catskill Mtn. Lodging, LLC, NY Slip Op 01597 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
March 16, 2009
Withdrawing as counsel.
Practice point: When an attorney terminates representation and there has been no misconduct, no discharge for just cause and no unjustified abandonment, the attorney preserves the right to enforce a statutory charging lien.
Practitioners should note that if the attorney’s moving papers do not specify the ground for the relief sought, an evidentiary hearing must be held to determine whether the attorney withdrew with just cause.
Case: Ramirez v. Willow Ridge Country Club, Inc., NY Slip Op 01525 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Labor Law.
Practitioners should note that if the attorney’s moving papers do not specify the ground for the relief sought, an evidentiary hearing must be held to determine whether the attorney withdrew with just cause.
Case: Ramirez v. Willow Ridge Country Club, Inc., NY Slip Op 01525 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Labor Law.
March 13, 2009
Sealed records.
Practice point: The statutory protection of records which would otherwise be kept sealed, pursuant to Criminal Procedure Law
§ 160.50, is waived by a party who affirmatively puts the underlying conduct at issue in a civil suit.
Practitioners should note that the statutory privilege may not be used to gain an advantage in a civil action allgeging malicious prosecution based on the underlying criminal proceeding.
Case: Best v. 2170 5th Ave. Corp., NY Slip Op 01524 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Withdrawing as counsel.
§ 160.50, is waived by a party who affirmatively puts the underlying conduct at issue in a civil suit.
Practitioners should note that the statutory privilege may not be used to gain an advantage in a civil action allgeging malicious prosecution based on the underlying criminal proceeding.
Case: Best v. 2170 5th Ave. Corp., NY Slip Op 01524 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Withdrawing as counsel.
March 12, 2009
Spoilation.
Practice point: A party's pleading may be struck as a sanction for the intentional destruction of key evidence.
Practitioners should note that if the destroyed evidence is not crucial to plaintiff's case, a lesser sanction is appropriate, at the discretion of the court.
Case: Kugel v. City of New York, NY Slip Op 01521 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Sealed records.
Practitioners should note that if the destroyed evidence is not crucial to plaintiff's case, a lesser sanction is appropriate, at the discretion of the court.
Case: Kugel v. City of New York, NY Slip Op 01521 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Sealed records.
March 11, 2009
Dog bites.
Practice point: To recover in strict liability, a plaintiff must prove that the dog had vicious propensities and that the owner knew or should have known of them.
Practitioners should note that a "Beware of Dog" sign does not raise an issue of fact absent evidence that, prior to the incident, the dog exhibited any vicious tendencies.
Case: Palumbo v. Nikirk, NY Slip Op 01454 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Spoilation.
Practitioners should note that a "Beware of Dog" sign does not raise an issue of fact absent evidence that, prior to the incident, the dog exhibited any vicious tendencies.
Case: Palumbo v. Nikirk, NY Slip Op 01454 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Spoilation.
March 10, 2009
Personal jurisdiction.
Practice point: New York courts may exercise jurisdiction over a defendant who transacts business in New York or who contracts anywhere to supply goods or services here, pursuant to CPLR 302[a][1]), even where defendant has never physically entered the state, so long as defendant's New York activities were purposeful and there is a substantial relationship between those activities and plaintiff’s claim.
Practitioners should note that exercising jurisdiction must not be inconsistent with traditional notions of due process, fair play, and substantial justice, pursuant to International Shoe.
Case: Bogal v. Finger, NY Slip Op 01435 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Dog bites.
Practitioners should note that exercising jurisdiction must not be inconsistent with traditional notions of due process, fair play, and substantial justice, pursuant to International Shoe.
Case: Bogal v. Finger, NY Slip Op 01435 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Dog bites.
March 9, 2009
Service of process.
Practice point: Defendants’ attorney served on plaintiff’s attorney a notice of appearance in response to a courtesy copy of the summons, but, since defendants themselves had not yet been served, the notice of appearance was a nullity.
Practitioners should note that unless a defendant designates its attorney as its agent for service, pursuant to CPLR 318, defendant’s attorney may not accept service on defendant’s behalf.
Case: Spivak v. Zilberman, NY Slip Op 01400 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Personal jurisdiction.
Practitioners should note that unless a defendant designates its attorney as its agent for service, pursuant to CPLR 318, defendant’s attorney may not accept service on defendant’s behalf.
Case: Spivak v. Zilberman, NY Slip Op 01400 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Personal jurisdiction.
March 6, 2009
Tortious interference with prospective employment.
Practice point: To establish this cause of action, a plaintiff must demonstrate the existence of a job offer, and must submit evidence sufficient to raise a fact-issue as to whether defendant acted with the sole purpose of harming plaintiff or engaged in improper or unlawful conduct.
Practitioners should note that there is a “but for” standard regarding the effect of defendant’s bad acts.
Case: Murphy v. City of New York, NY Slip Op 01346 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Service of process.
Practitioners should note that there is a “but for” standard regarding the effect of defendant’s bad acts.
Case: Murphy v. City of New York, NY Slip Op 01346 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Service of process.
March 5, 2009
Discovery.
Practice point: An action may be dismissed, pursuant to CPLR 3126, where a party disobeys a discovery order or willfully fails to disclose information which the court finds should have been disclosed.
Practitioners should note that parties who do not respond expeditiously to discovery notices should be afforded reasonable latitude before dismissal, and the complaint should not be dismissed unless the noncompliance was willful, contumacious or in bad faith.
Case: Shure v. New York Cruise Lines, Inc., NY Slip Op 01335 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Tortious interference with prospective employment.
Practitioners should note that parties who do not respond expeditiously to discovery notices should be afforded reasonable latitude before dismissal, and the complaint should not be dismissed unless the noncompliance was willful, contumacious or in bad faith.
Case: Shure v. New York Cruise Lines, Inc., NY Slip Op 01335 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Tortious interference with prospective employment.
March 4, 2009
Settlement agreements.
Practice point: Emails exchanged between counsel, which contained their printed names at the end, constitute signed writings, pursuant to CPLR 2104, within the meaning of the statute of frauds, and will entitle plaintiff to a judgment based on the settlement agreement, pursuant to CPLR 5003-a(e).
Practitioners should note that defendant’s subsequent refusal to execute form releases and a stipulation of discontinuance does not invalidate the settlement agreement.
Case: Williamson v. Delsener, NY Slip 01333 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Discovery.
Practitioners should note that defendant’s subsequent refusal to execute form releases and a stipulation of discontinuance does not invalidate the settlement agreement.
Case: Williamson v. Delsener, NY Slip 01333 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Discovery.
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