Practice point: To support the cause of action, the factual allegations must establish the necessary element of causation, namely, that "but for" the alleged acts or omissions, plaintiff would not have incurred any damages.
Practitioners should note that the mere failure to disclose malpractice does not give rise to a cause of action alleging fraud or deceit, apart from the underlying malpractice cause of action.
Case: Reichenbaum v. Cilmi, NY Slip Op 05954 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
August 6, 2009
August 5, 2009
Motion practice.
Practice point: A motion for leave to renew must be based on new facts that would change the prior determination, pursuant to CPLR 221[e][2]), and must include a reasonable justification for the failure to present the facts on the prior motion, pursuant to CPLR 2221[e][3].
Practitioners should note that a motion to reargue is within the sound discretion of the court, and may be granted on a showing that the court overlooked or misapprehended the facts or law, or otherwise mistakenly arrived at its earlier decision.
Case: Barnett v. Smith, NY Slip Op 05939 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Legal malpractice.
Practitioners should note that a motion to reargue is within the sound discretion of the court, and may be granted on a showing that the court overlooked or misapprehended the facts or law, or otherwise mistakenly arrived at its earlier decision.
Case: Barnett v. Smith, NY Slip Op 05939 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Legal malpractice.
August 4, 2009
Motion practice.
Practice point: An order that was issued sua sponte is not appealable as of right.
Practitioners should note that a motion is a request for an order, pursuant to CPLR 2211, and a letter simply requesting a telephone conference with the court does not serve as a notice of motion.
Case: Reyes v. Sequeira, NY Slip Op 05986 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
Practitioners should note that a motion is a request for an order, pursuant to CPLR 2211, and a letter simply requesting a telephone conference with the court does not serve as a notice of motion.
Case: Reyes v. Sequeira, NY Slip Op 05986 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
August 3, 2009
Real property.
Practice point: A contract for sale is void unless it is in writing and subscribed by the party to be charged or a lawful agent, pursuant to General Obligations Law § 5-703(2).
Practitioners should note that an agent’s apparent authority, if unwritten, does not satisfy the statute of frauds.
Case: Leist v. Tugendhaft, NY Slip Op 05950 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
Practitioners should note that an agent’s apparent authority, if unwritten, does not satisfy the statute of frauds.
Case: Leist v. Tugendhaft, NY Slip Op 05950 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
July 31, 2009
Duty of care.
Practice point: Emotional harm is compensable in the absence of physical injury, but only where the injury is a direct result of the alleged breach of duty.
Practitioners should note that the claim must possess some guarantee of genuineness.
Case: Karin K. v. Four Winds Hospital, NY Slip Op 05947 (2d Dept. 2009)
The opinion is here.
Monday’s issue: Real property.
Practitioners should note that the claim must possess some guarantee of genuineness.
Case: Karin K. v. Four Winds Hospital, NY Slip Op 05947 (2d Dept. 2009)
The opinion is here.
Monday’s issue: Real property.
July 30, 2009
Defamation.
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.
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 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.
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