Landlord-Tenant Law.

Practice point: Where a lease allows a landlord to recover attorneys’ fees if a tenant defaults or is evicted, the claim for the fee must be asserted in the summary proceeding.

Practitioners should note that a separate, plenary action to recover attorneys’ fees is prohibited as the splitting of the cause of action.

Case: Landmark Properties v. Olivo, NY Slip Op 04202 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

Legal malpractice.

Practice point: It is sufficient to allege that defendant, after being retained in a matter of wrongful termination as a result of a medical condition, advised plaintiff not to file a disability claim, and benefits were denied for lack of a timely filing.

Practitioners should note that the action is not barred when the underlying matter was settled, without a judgment.

Case: Douglas v. Dashevsky, NY Slip Op 04187 (2d Dept. 2009).

The opinion is here.

Tomorrow’s issue: Landlord-Tenant Law.

There is another instructive case here.

Damages.

Practice point: For permanent injury to real property, the standard is the lesser of the decline in market value and the cost of restoration.

Practitioners should note that defendant must prove that a lesser amount than plaintiff claims will be sufficient compensation.

Case: Dilapi v. Empire Drilling & Blasting, Inc., NY Slip Op 04186 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

There is another instructive case here.

Judgment as a matter of law.

Practice point: The motion will be granted, pursuant to CPLR 4401, only when the trial court determines that, based on the evidence presented, there is no rational process by which the jury could find in favor of the nonmoving party.

Practitioners should note that the court must afford the nonmovant every inference which may properly be drawn from the facts presented, and the facts must be considered most favorably to the nonmovant.

Case: DeVito v. City of New York, NY Slip Op 04184 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Damages.

You will find another instructive case here.

Motion practice.

Practice point: The Court may consider an untimely summary judgment motion where a timely motion was made on nearly identical grounds.

Practitioners should note that a Court is authorized to search the record and award summary judgment to a nonmoving party.

Case: Perfito v. Einhorn, NY Slip Op 04038 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Judgment as a matter of law.

You will find another instructive case here.

Notice of Claim.

Practice point: The notice is sufficient if the public entity is able to locate the place and fix the time of the accident, and to understand its nature.

Practitioners should note that, on a motion to dismiss for insufficiency, a court may consider the testimony provided during the § 50-h hearing, and any other evidence before it.

Case: Parker-Cherry v. New York City Hous. Auth., NY Slip Op 04037 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

You will find another instructive case here.

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.