Municipalities Law.

Practice point: To obtain preliminary injunctive relief based on a violation of its zoning ordinances, a town must demonstrate that it is likely to succeed on the merits and that the equities are balanced in its favor.

Practitioners should note that zoning ordinances will be strictly construed against the municipality, and any ambiguity in the language must be resolved in favor of the property owner.

Case: Town of Riverhead v. Gezari, NY Slip Op 05320 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: The right of direct appeal from an intermediate order terminates with the entry of judgment in the action.

Practitioners should note that in a declaratory judgment action the court's judgment must include an appropriate declaration in favor of the prevailing party.

Case: Strathmore Ridge Homeowners Assn., Inc. v. Mendicino, NY Slip Op 05318 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Service of process.

Practice point: Defendant’s detailed affidavit stating that he was home on each of the occasions when the process server purportedly attempted service, pursuant to CPLR 308(2), is sufficient to rebut allegations in the process server's affidavit, and defendant is entitled to a hearing to determine whether personal jurisdiction was acquired over him.

Practitioners should note that defendant’s actual notice of the action will not sustain service or subject a person to the court's jurisdiction when there has not been compliance with prescribed conditions of service.

Case: Saxon Mortgage Services v. Bell, NY Slip Op 05312 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: An at-will employee generally cannot establish reasonable reliance on a prospective employer's representations, an element necessary to recover damages under theories of fraudulent misrepresentation and negligent misrepresentation.

Practitioners should note that a critical element of prima facie tort is that plaintiff suffered a specific and measurable loss, which requires an allegation of special damages.

Case: Epifani v. Johnson, NY Slip Op 05287 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Service of process.

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.