Labor Law.

Practice point: For the purposes of § 240(1) liability, a fire escape could be the functional equivalent of a scaffold.

Practitioners should note that the fact that the fire escape is a permanent structure is not determinative.

Case: Gomez v. City of New York, NY Slip Op 04759 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

There is another instructive case here.

Long-arm jurisdiction.

Practice point: Defendant's negotiating the potential purchase of an automobile by email and telephone, which was initiated by plaintiff after seeing the car on defendant's website, does not constitute transacting business in New York.

Practitioners should note that, since the car was to be picked up in Texas, there was no contract to supply goods or services in New York. Defendant's website, which described available cars and featured an email link but did not let a customer purchase a car, was not a projection of defendant into New York.

Case: Arouh v. Budget Leasing, Inc., NY Slip Op 04751 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

There is another instructive case here.

Discovery.

Practice point: Full disclosure is required of everything material and necessary to the defense of an action, pursuant to CPLR 3101[a], which means that there must be disclosure of any facts bearing on the controversy.

Practitioners should note that, in a defamation action, defendant is entitled to discovery to establish the defense of truth to plaintiff's claims, and to defend against plaintiff's assertion of damage to his reputation.

Case: Rivera v. NYP Holdings, Inc., NY Slip 04706 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Long-arm jurisdiction.

There is another instructive case here.

Attorney-client relationships.

Practice point: While a plaintiff's perception, standing alone, does not create an attorney-client relationship, a formal retainer agreement is not imperative.

Practitioners should note that, in order to establish the relationship, there must be an explicit undertaking to perform a specific task.

Case: Terio v. Spodek, NY Slip 04412 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Discovery.

There is another instructive case here.

Motion practice.

Practice point: To avoid dismissal for failure to timely serve a complaint which has been demanded, pursuant to CPLR 3012(b), plaintiff must demonstrate a reasonable excuse for the delay and a meritorious cause of action.

Practitioners should note that until the attorney of record withdraws or is fired, as prescribed by CPLR 321, the attorney’s authority for the client as to adverse parties continues unabated.

Case: Splinters, Inc. v. Greenfield, NY Slip Op 04411 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Attorney-client relationships.

There is another instructive case here.

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.