Motion practice.

Practice point: To survive a pre-answer motion to dismiss pursuant to CPLR 3211(a)(7), plaintiff must plead allegations from which damages attributable to defendant's conduct may reasonably be inferred.

Practitioners should note that, at this early stage of the proceeding, plaintiff is not obliged to show that damages actually were sustained.

Case: Fielding v. Kupferman, NY Slip Op 06151 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Trusts and Estates.

Comparative negligence.

Practice point: A person who accepts a ride in a vehicle, with knowledge that the operator may be intoxicated, takes a risk that injury might occur.

Practitioners should note that the risk will be considered in the analysis of comparative negligence as between the vehicle’s operator and the passenger.

Case: Strychalski v. Dailey, NY Slip Op 06134 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Arbitration.

Practice point: Arbitration is favored in New York State as a means of resolving disputes, and courts will interfere as little as possible with agreements to arbitrate.

Practitioners should note that a party will not be compelled to arbitrate absent evidence that the parties expressly agreed to arbitrate their disputes.

Case: Shah v. Monpat Constr., Inc., NY Slip Op 06132 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Comparative negligence.

Motion practice.

Practice point: A defendant seeking to vacate its default in appearing or answering must offer a reasonable excuse for the default and demonstrate a meritorious defense to the complaint.

Practitioners should note that an excuse that the insurer took more than one year in providing a defense is insufficient.

Case: Kramer v. Oil Services, Inc., NY Slip Op 06121 (2d Dept. 2009).

The opinion is here.

Tomorrow’s issue: Arbitration.

Notice of claim.

Practice point: Filing a police accident report with the New York City Department of Transportation does not constitute notice of claim to the City.

Practitioners should note that law office failure, standing alone, is insufficient to justify serving an unauthorized late notice of claim five months after the expiration of the 90-day statutory period of General Municipal Law § 50-e.

Case: Gobardhan v. City of New York, NY Slip Op 05961 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Contracts.

Practice point: If a contract is not signed by the party to be charged with its enforcement, it is void as against that party, pursuant to the statute of frauds.

Practitioners should note that to prove an enforceable oral contract under the doctrine of part performance, there must be an act that is unequivocally referable to the alleged contract.

Case: Singh v. Kur, NY Slip Op 05957 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Notice of claim.

Motion practice.

Practice point: In an action brought by an out-of-state resident, defendant may move for an order directing plaintiff to post security during the pendency of the action so that defendant, if successful, will be able to collect its costs, pursuant to CPLR 8501[a].

Practitioners should note that, in counties outside of the City of New York, the statutory amount is $250, pursuant to CPLR 8503.

Case: Halloway v. KRNH, Inc., NY Slip Op 06003 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Contracts.

Legal malpractice.

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.

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.

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.

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.