Torts.

Practice point: The awareness of one defect in the area is insufficient, as a matter of law, to constitute notice of another defect which caused the accident where there are factual issues (1) as to the precise location of the defect that caused plaintiff's fall, and (2) whether the defect is designated on the Big Apple Map.

Practitioners should note that plaintiff may amend the pleadings on the eve of trial to allege prior written notice where such amendment does not prejudice or surprise defendant, pursuant to CPLR 3025[b].

Case: Reyes v. City of New York, NY Slip Op 05267 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Happy July Fourth.

Today is a court holiday and so there is no post.

Thanks to the men and women whose service has kept us free, and enjoy a safe and happy holiday weekend.

Monday's issue: Torts.

Vacatur.

Practice point: Both CPLR 317 and 5015(a)(1) allow a defendant to move to vacate a default judgment, but the former is available only to a defendant who was served by other than personal delivery.

Practitioners should note that if the defaulting defendant asserts that the court lacked personal jurisdiction, the defendant should seek dismissal of the action under CPLR 5015(a)(4), a motion that has no time-limit.

Case: Caba v. Rai, NY Slip Op 05252 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Torts.

Marital property.

Practice point: Subject to equitable distribution, it includes property acquired by either spouse during the marriage regardless of the form in which title is held, pursuant to Domestic Relations Law § 236[B][1][c].

Practitioners should note that, even if one party has separate property, any appreciation in value of that property may be subject to distribution if there is a nexus between the titled spouse's efforts and the increase in value and if those efforts were aided or facilitated by the nontitled spouse.

Case: Wohl v. Wohl, NY Slip Op 04973 (1st Dept 2009)

The opinion is here.

Tomorrow’s issue: Vacatur.

Defective products.

Practice point: The distributor is strictly liable even if he has merely taken an order and directed the manufacturer to ship the product directly to the purchaser, and has never inspected, controlled, installed or serviced the product.

Practitioners should note that there is strict liability even if the product’s sale were incidental to the distributor’s installation of it.

Case: Fernandez v. Riverdale Terrace, NY Slip Op 05167 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Marital property.

Jurisdiction.

Practice point: Jurisdiction will be obtained over a corporate defendant by service of process on the Secretary of State, regardless of whether the process ever actually reached defendant.

Practitioners should note that while the failure to keep a current address with the Secretary of State, pursuant to Business Corporation Law § 306(b)(1), is generally not a reasonable excuse for default under CPLR 5015(a)(1), relief from a default may be granted pursuant to CPLR 317 where the court finds that a defendant did not personally receive notice of the summons in time to defend and has a meritorious defense.

Case: Shanker v. 119 E. 30th, Ltd., NY Slip Op 05165 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Defective products.

Service of process.

Practice point: Pursuant to CPLR 311(a)(1), service upon a corporation may be made by delivering the summons to an officer, director, managing agent, general agent, cashier, or assistant cashier.

Practitioners should note that, in addition, service may be made upon someone whom the corporation cloaks with authority.

Case: Aguilera v. Pistilli Constr. & Dev. Corp., NY Slip Op 04844 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Jurisdiction.

There is another instructive case here.

Municipalities Law.

Practice point: A § 50-h examination is a condition precedent to bringing an action against a municipality, and noncompliance is ground for dismissal.

Practitioners should note that failure to submit to the examination may be excused in exceptional circumstances, such as extreme physical or psychological incapacity.

Case: Steenbuck v. Sklarow, NY Slip 04890 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Service of process.

There is another instructive case here.

Motion practice.

Practice point: If service of process has been improper, any resulting default judgment is a nullity.

Practitioners should that that the fact that defendant had actual notice of the suit, and no meritorious defense, does not require a different result.

Case: Ruffin v. Lion Corp., NY Slip Op 04883 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

There is another instructive case here.

Legal malpractice.

Practice point: The absence of proximate cause requires dismissal of a legal malpractice action regardless of the attorney’s negligence.

Practitioners should note that an attorney may not recover fees for legal services performed in a negligent manner even where that negligence is not a proximate cause of client's injury.

Case: Kluczka v. Lecci, NY Slip Op 04867 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

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.