Torts.

Practice point: The open and obvious nature of an obstacle negates the property owner's duty to warn, but not the duty to ensure that the property is reasonably safe.

Practitioners should note that plaintiff's recognition that she knew the obstacle was there, and had even warned another person to be careful of it, does not preclude a finding of liability.

Case: Lawson v. Riverbay Corp., NY Slip Op 05683 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Expert testimony.

Contracts.

Practice point: A written agreement is ambiguous if it is reasonably susceptible of more than one interpretation.

Practitioners should note that, in the absence of such ambiguity, parol evidence is inadmissible at trial or on a motion for summary judgment.

Case: RM Realty Holdings Corp. v. Moore, NY Slip Op 05682 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: No appeal lies from a default judgment, or its underlying order.

Practitioners should note that the appeal of an order will be dismissed if the issue raised therein was raised in a prior appeal of another order, and that appeal was dismissed for failure to prosecute.

Case: Salomon v. Angsten, NY Slip Op 05178 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

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.