Practice point: Pursuant to CPLR 3016(a), the complaint must set forth the particular words complained of.
Practitioners should note that compliance with the statute is strictly enforced.
Case: Horbul v. Mercury Ins. Group, NY Slip Op 05947 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Duty of care.
July 30, 2009
July 29, 2009
Stipulations of settlement.
Practice point: A party will not be relieved from the stipulation absent fraud, mistake, collusion or accident.
Practitioners should note that the party seeking to vacate the stipulation must do so with reasonable promptness under the circumstances.
Case: Charlop v. A.O. Smith Water Prods., NY Slip Op 05911 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Defamation.
Practitioners should note that the party seeking to vacate the stipulation must do so with reasonable promptness under the circumstances.
Case: Charlop v. A.O. Smith Water Prods., NY Slip Op 05911 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Defamation.
July 28, 2009
Damages.
Practice point: Damages for breach of contract are ordinarily ascertained as of the date of the breach, not the date of trial.
Practitioners should note that a contract is not breached until the time set for performance has expired.
Case: Cole v. Macklowe, NY Slip Op 05907 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Stipulations of settlement.
Practitioners should note that a contract is not breached until the time set for performance has expired.
Case: Cole v. Macklowe, NY Slip Op 05907 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Stipulations of settlement.
July 27, 2009
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.
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.
July 24, 2009
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.
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.
July 23, 2009
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.
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.
July 22, 2009
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.
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.
July 21, 2009
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.
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.
July 20, 2009
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.
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.
July 17, 2009
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.
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.
July 16, 2009
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.
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.
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