Trespass.

Practice point: Entering onto another’s property, without permission, even if innocently or by mistake, is a trespass.

Practitioners should note that nominal damages are presumed even where the property owner has suffered no actual injury.

Case: Hill v. Raziano, NY Slip Op 04382 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

Motion practice.

Practice point: In order to vacate a default in opposing plaintiff's motion to strike the answer, pursuant to CPLR 3126, defendant must demonstrate a reasonable excuse for the default and a meritorious defense to both the motion and the action, pursuant to CPLR 5015[a][1].

Practitioners should note that the mere denial of receipt is insufficient to rebut the proof that the motions papers were properly mailed, and the presumption of receipt.

Case: Caprio v. 1025 Manhattan Ave. Corp., NY Slip Op 04367 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Trespass.

There is another instructive case here.

Motion practice.

Practice point: An order striking a note of issue pending the completion of discovery is not the equivalent of an order marking the action off the calendar pursuant to CPLR 3404.

Practitioners should note that the action will be restored to the trial calendar when plaintiff files a new note of issue, which does not require the Court’s prior permission.

Case: Lane v. New York City Housing Authority, NY Slip Op 04203 (2d Dept. 2009).

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

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.