Motion practice.

Practice point: CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar and not restored within one year has been abandoned.

Practitioners should note that the court retains discretion to grant a motion to restore a case to the trial calendar after the one-year period has expired.

Case: Kahgan v. Alwi, NY Slip Op 08183 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Arbitration.

Motion practice.

Practice point: When defendant files an answer only after the court denies the motion to dismiss for lack of personal jurisdiction, defendant does not waive that defense by asserting unrelated counterclaims.

Practitioners should note that affidavits may be used to preserve potentially meritorious claims, even if inartfully pleaded.

Case: Finkelstein Newman Ferrara LLP v. Manning, NY Slip Op 08470 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: While lack of subject matter jurisdiction can be raised at any time, it is within a New York court's power to entertain the case before it.

Practitioners should note that the objection will likely be waived where, after judgment, it is argued that the court did not have power to act as to a particular question.

Case: Miraglia v. H & L Holding Corp., NY Slip Op 08453 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: A New York resident cannot bring a proceeding under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) against a foreign corporation for alleged discrimination that occurred outside New York.

Practitioners should note that the Americans with Disabilities Act (ADA) does not require an employer to grant the employee an indefinite leave of absence or to transfer the employee to a position in another department that is occupied by another employee.

Case: Esposito v. Altria Group, Inc., NY Slip Op 08151 (1st Dept. 2009)

The opinion is here.

Monday's issue: Motion practice.

Corporations.

Practice point: A corporation’s sole shareholder is the equitable owner and, in the absence of an adverse effect upon creditors’ rights, the corporation's property may be used in payment of or as security for personal debt.

Practitioners should note that a corporation may authorize its president to use corporate checks to pay personal debt.

Case: Masek v. Wichelman, NY Slip Op 08050 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending between the same parties for the same cause of action.

Practitioners should note that dismissal requires that both suits arise out of the same subject matter or series of alleged wrongs.

Case: Cherico, Cherico & Assoc. v. Midollo, NY Slip Op 07972 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Corporations

Arbitration.

Practice point: An award can be vacated on the basis of "manifest disregard of the law" but this is a doctrine of last resort limited to rare instances of extreme impropriety on the part of the arbitrator.

Practitioners should note that a court must find that (1) the arbitrator knew of a governing legal principle yet refused to apply it or ignored it altogether, and (2) the ignored law was well defined, explicit, and clearly applicable.

Case: McLaughlin, Piven, Vogel Sec., Inc. v. Ferrucci, NY Slip Op 07926 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: When plaintiff fails to serve a responsive bill of particulars following a conditional order of preclusion, the order becomes absolute.

Practitioners should note that, to avoid the adverse impact of the conditional order, plaintiff must demonstrate a reasonable excuse for the failure to comply and a meritorious cause of action.

Case: Panagiotou v. Samaritan Vil., Inc., NY Slip Op 07811 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Arbitration.

Res judicata.

Practice point: A final disposition on the merits bars litigation between the same parties on any other claims arising from the same transaction or the same or related facts, even if based upon a different theory involving different elements of proof.

Practitioners should note that the rule applies also to claims that could have been raised in the prior litigation.

Case: Shelley v. Silvestre, NY Slip Op 07822 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Happy Thanksgiving.

Thank you for following NEW YORK LAW NOTES throughout the year.

The courts reopen tomorrow and we will be posting again.

Tomorrow's issue: Res judicata.

Municipalities Law.

Practice point: On a motion for leave to serve a late notice of claim, the court will consider whether the municipality had actual knowledge of the essential facts within a reasonable time after the claim arose; whether there is a reasonable excuse for the failure to serve timely; and whether the municipality would be prejudiced in maintaining its defense.

Practitioners should note that the notice must give the municipality knowledge of the specific claim and not some general knowledge that a wrong has been committed.

Case: Wright v. City of New York, NY Slip Op 07856 (2d Dept. 2009)

The opinion is here.

Friday’s issue: Res judicata.