Spoilation.

Practice point: A party who negligently loses or intentionally destroys key evidence party may be sanctioned, pursuant to CPLR 3126.

Practitioners should note that, in the event of spoliation, the sanction of striking a pleading is appropriate only where the missing evidence deprives the moving party of the ability to establish a claim or a defense.

Case: Holland v. W.M. Realty Mgt., Inc., NY Slip Op 05844 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Statute of limitations.

Practice point: The nature of the relief sought in a declaratory judgment action dictates the limitations period.

Practitioners should note that, if plaintiff could have commenced an action against the defendant corporation to recover damages for fraud, the limitations period is six years from the time of the fraud, or two years from the time the fraud was, or could have been, discovered.

Case: Waldman v. 853 St. Nicholas Realty Corp., NY Slip Op 05769 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Spoilation.

Employment Law.

Practice point: To make a prima facie showing of discrimination pursuant to Executive Law § 296(1), plaintiff must present evidence sufficient to raise an inference that he could perform the job with reasonable accommodations.

Practitioners should note that a claim for constructive discharge must establish that defendants' actions resulted in a workplace atmosphere so intolerable as to compel a reasonable person to leave.

Case: Evans v. City of New York, NY Slip Op 05832 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Statute of limitations.

Defamation.

Practice point: There is no cause of action if the words, tested by their effect on the average reader, are not reasonably susceptible of a defamatory meaning.

Practitioners should note that a communication that states or implies that a person is promiscuous is defamatory.

Case: Ava v. NYP Holdings, Inc., NY Slip Op 05611 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Employment Law.

Defamation.

Practice point: In order to be qualified as an expert, a witness must possess the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion is reliable.

Practitioners should note that evidence that a person has experience servicing and repairing elevators, standing alone, does not establish that the person can render a reliable opinion regarding the cause of the failure of an interlock.

Case: Schechter v. 3320 Holding LLC, NY Slip Op 05684 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Defamation.

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.