Motion practice.

Practice point: CPLR 3216 permits dismissal for want of prosecution only after plaintiff has been served with written notice demanding a note of issue within 90 days, and also stating that failure to comply will result in a motion to dismiss.

Practitioners should note adherence to these statutory provisions is a condition precedent to dismissal.

Case: Itskov v. Menorah Home & Hosp. for the Aged & Infirm, NY Slip Op 08999 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Merry Christmas.

Best wishes for a safe and happy Christmas season.

The Courts reopen on Monday and we will be posting a new case.

In the meantime, thank you for your support throughout the year.

Motion practice.

Practice point: A court may exercise personal jurisdiction over a non-domiciliary who transacts any business within New York, pursuant to CPLR 302(a).

Practitioners should note that jurisdiction may result from even one transaction, if it was purposeful and it bears a substantial relationship to the claim.

Case: Executive Life Ltd. v. Silverman, NY Slip Op 08994 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Contracts.

Practice point: Agreements containing no definite term of duration are terminable at will.

Practitioners should note that the term need not be express, but may be implied.

Case: Better Living Now, Inc. v. Image Too, Inc., NY Slip Op 08769 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Labor Law.

Practice point: For liability to attach under § 240(1), the employee must have been injured during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.

Practitioners should note that ‘altering,' within the statute’s meaning, requires making a significant physical change to the configuration or composition of the building or structure, and routine maintenance is not protected.

Case: LaGiudice v. Sleepy's Inc., NY Slip Op 08788 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Contracts.

Practice point: Where the written agreement does not cover the dispute, plaintiff may present evidence to prove an alleged oral agreement, as such proof would not contradict or modify the terms.

Practitioners should note that where the written agreement does not cover the dispute, or there is a question about the existence of a contract, plaintiff may proceed on a theory of quasi-contract as well as breach of contract, and will not be required to elect a remedy.

Case: Elbroji v. 22 E. 54th St. Rest. Corp., NY Slip Op 08779 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Contracts.

Practice point: Where the written agreement does not cover the dispute, plaintiff may present evidence to prove an alleged oral agreement, as such proof would not contradict or modify the terms.

Practitioners should note that where the written agreement does not cover the dispute, or there is a question about the existence of a contract, plaintiff may proceed on a theory of quasi-contract as well as breach of contract, and will not be required to elect a remedy.

Case: Elbroji v. 22 E. 54th St. Rest. Corp., NY Slip Op 08779 (2d Dept. 2009)

The opinion is here.


Tomorrow’s issue: Labor Law.

Legal malpractice.

Practice point: To recover damages, plaintiff must establish that the attorney failed to exercise the skill and knowledge commonly possessed by a member of the profession, and that the breach of this duty proximately caused actual and ascertainable damages.

Practitioners should note that causation requires a showing that plaintiff would have prevailed in the underlying action or would not have incurred damages but for the attorney's negligence.

Case: Ali v. Fink, NY Slip Op 08766 (2d Dept. 2009)

The opinion is here.

Monday's issue: Contracts.

Motion practice.

Practice point: It is within the sound discretion of the court to decide a motion for leave to voluntarily discontinue an action without prejudice, pursuant to CPLR 3217(b).

Practitioners should note that the motion should be granted in the absence of special circumstances, such as prejudice to a defendant's substantial right.

Case: Expedite Video Conferencing Servs., Inc. v. Botello, NY Slip Op 08781 (2d Dept. 2009)

The opinion is here.

Tomorrow's issue: Legal malpractice.

Torts.

Practice point: A landowner has a duty to maintain the premises in a reasonably safe condition.

Practitioners should note that there is no duty to warn or protect against an open and obvious condition which is not inherently dangerous.

Case: Bretts v. Lincoln Plaza Assoc., Inc., NY Slip Op 08771 (2d Dept. 2009)

The opinion is here.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Notice of motion to compel the turnover of personal property is served in the same way as a summons, or by registered or certified mail, return receipt requested, pursuant to CPLR 5225(a).

Practitioners should note that improper notice deprives the court of jurisdiction to hear the motion.

Case: Buckeye Retirement Co., LLC, Ltd. v. Quattrocchi, NY Slip Op 08576 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.