Contracts.

Practice point: A party cannot complain that it was induced to enter into a transaction by misrepresentations if it did not use the ordinary means of discovering the transaction’s true nature.

Practitioners should note that a plaintiff cannot argue that a lease agreement was modified by defendant’s oral representations when the lease expressly provides that its terms may be changed only in writing.

Case: Woods v. 126 Riverside Dr. Corp., NY Slip Op 05634 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Damages.

Landlord-tenant.

Practice point: A landlord may recover possession of a rent-stabilized apartment if it is not occupied by the tenant as the primary residence.

Practitioners should note that “primary residence” will be construed as an ongoing, substantial, physical nexus with the premises for actual living purposes.

Case: 542 E. 14th St. LLC v. Lee, NY Slip Op 05689 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Contracts.

Motion practice.

Practice point: On a motion for summary judgment in a medical malpractice matter, defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice, or that plaintiff was not injured thereby.

Practitioners should note that, in opposition, plaintiff must submit material or evidentiary facts to rebut defendant's prima facie showing.

Case: Langan v. St. Vincent's Hosp. of N.Y., NY Slip Op 05846 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Landlord-tenant.

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.