Appellate practice.

Practice point: The Appellate Division generally will not consider, on a subsequent appeal, an issue from an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so.

Practitioners should note that the better practice is to withdraw the prior appeal, and not abandon it.

Case: Maksuta v. Galiatsatos, NY Slip Op 04033 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Notice of Claim.

You will find another instructive case here.

Partnership Law.

Practice point: A former law partner has no standing to seek an accounting when the claim to money owed would have accrued prior to his a commencing proceeding in which he received a discharge in bankruptcy.

Practitioners should note that an accounting may not be sought to obtain information about the funds of the partnership's clients.

Case: Goldman v. Rio, NY Slip Op 04027 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Appellate practice.

You will find another instructive case here.

Labor Law.

Practice point: Plaintiff's failure to plead an Industrial Code violation, other than in its opposition to a summary judgment motion, is not fatal to the § 241(6) cause of action.

Practitioners should note that when alleging a dangerous worksite condition, a plaintiff must demonstrate that defendant had control over the work site and actual or constructive notice.

Case: Fuchs v. Austin Mall Assoc., LLC, NY Slip Op 03863 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Partnership Law.

You will find another instructive case here.

Conflict of laws.

Practice point: Where there is a true conflict between the laws of New Jersey and New York, and each jurisdiction favors its own domiciliary, the law of the place of the injury ordinarily controls.

Practitioners should note that the Court may apply the exception to this rule (1) if there were sufficient contacts of the parties, the incident, and New York, or (2) if enforcing New Jersey law would violate New York’s public policy, its Constitution or its judicial decisions.

Case: Begley v. City of New York, NY Slip Op 03856 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

You will find another instructive case here.

Legal malpractice.

Practice point: The suit to recover damages must be commenced within three years from accrual of the cause of action.

Practitioners should note that a legal malpractice cause of action accrues on the date the malpractice was committed, not when it was discovered.

Case: Byron Chem. Co., Inc. v. Groman, NY Slip Op 03465 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Conflict of laws.

You will find another instructive case here.

Family Law.

Practice point: There likely will be a change in custody only if, in the best interests of the child, the totality of the circumstances warrants a modification.

Practitioners should note that the court will consider factors such as the home environment and the custodial parent’s guidance; each parent’s ability to provide for the child's emotional and intellectual development; and each parent’s financial status as it relates to providing for the child.

Case: McGovern v. Lynch, NY Slip Op 03736 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

You will find another instructive case here.

Memorial Day.

Happy and safe Memorial Day to my fellow Vietnam veterans and to the men and women, of whatever service or stripe, who have served to keep us free.

Motion practice.

Practice point: To oppose plaintiff’s motion for leave to enter a default judgment for failing to timely serve an answer, defendant must demonstrate a justifiable excuse for its default and a meritorious defense.

Practitioners should note that defendant's insurance carrier's lengthy delay before defending the action, without more, is insufficient to establish a reasonable excuse.

Case: Leifer v. Pilgreen Corp., NY Slip Op 03872 (2d Dept. 2009)

The opinion is here.

Tuesday’s issue: Family Law.

You will find another instructive case here.

Municipalities Law.

Practice point: An injured police officer looking to recover under General Municipal Law § 205-e must identify a statute or ordinance which defendant violated, and must plead facts from which it may be inferred that defendant's negligence directly or indirectly caused the injuries.

Practitioners should note that proving indirect cause does not require the same proof as proximate cause in common-law negligence, but a practical or reasonable connection between the statutory or regulatory violation and the injury.

Case: Cerati v. Berrios, NY Slip Op 03469 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

You will find another instructive case here.

Legal malpractice.

Practice point: A legal malpractice claim may result from giving faulty advice to a client.

Practitioners should note that an attorney may be liable for ignorance of the rules of practice; failure to comply with conditions precedent to suit; neglect to prosecute; or failure to conduct adequate research.

Case: Mortenson v. Shea, NY Slip 03611 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

You will find another instructive case here.

Motion practice.

Practice point: Plaintiff’s motion to vacate a conditional preclusion order will be denied after plaintiff failed to comply with three discovery orders, and did not offer a reasonable excuse for those failures or set forth the merits of the claim.

Practitioners should note that since counsel was present when the order was issued, plaintiff was on notice of it and is bound by its provisions.

Case: Ensley v. Snapper, Inc., NY Slip Op 03594 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

You will find another instructive case here.