Motion practice.

Practice point: Standing alone, a business relationship with a New York entity is not enough for personal jurisdiction.

Practitioners should note that the investment of money in New York is not a form of doing business for the purpose of CPLR § 301.

Case: Arroyo v. Mountain School, NY Slip Op 09509 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: On a 3211 motion to dismiss for failure to state a cause of action, the court must accept the alleged facts as true, give plaintiff the benefit of every inference, and determine only whether the allegations fit any cognizable legal theory.

Practitioners should note that allegations which are flatly contradicted by the record are not presumed to be true and, if documentary evidence disproves an essential allegation, dismissal is warranted.

Case: Deutsche Bank Natl. Trust Co. v. Sinclair, NY Slip Op 09419 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Happy New Year.

Best wishes for a safe and happy holiday weekend, and a wonderful 2010.

Thank you for your support throughout the year just past.

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

Labor Law.

Practice point: There is a statutory duty to protect workers engaged in, among other things, the repair of a building or structure, pursuant to § 240(1).

Practitioners should note that routine maintenance in order to prevent a malfunction is not a covered activity.

Case: Santiago v. Fred-Doug 117, L.L.C., NY Slip Op 09369 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: In a medical malpractice action, service of the summons and complaint must be accompanied by the notice required by CPLR 3406, and by an attorney's certificate of merit, pursuant to CPLR 3012-a.

Practitioners should note that the court may extend the time to file the notice, upon the showing of good cause, pursuant to CPLR 2004.

Case: Grad v. Hafliger, NY Slip Op 09297 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Motion practice.

Practice point: CPLR 3216 authorizes, but does not require, dismissal of an action based on plaintiff's unreasonable neglect to proceed.

Practitioners should note that dismissal is prohibited if plaintiff shows a justifiable excuse for the delay and merit to the action.

Case: Espinoza v. 373-381 Park Ave. S., LLC, NY Slip Op 09288 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

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.