Motion practice.

Practice point: A default resulting from law office failure may be excused, pursuant to CPLR 2005, but defendant's denial of receipt of the papers and a letter referring to the pending motion, standing alone, is insufficient to rebut proof that the motion papers were properly mailed and the presumption of receipt.

Practitioners should note that defendant's noncompliance with court-ordered disclosure over a period of over two years will create an inference of willful and contumacious conduct warranting the striking of the answer.

Case: Bryant v. New York City Hous. Auth., NY Slip Op 00383 (1st Dept. 2010)

The opinion is here.

Monday’s issue: Labor Law.

Employment Law.

Practice point: Where an employment is for an indefinite term, it is presumed to be at will, and it may be freely terminated by either party at any time, for any reason or for no reason.

Practitioners should note that a plaintiff cannot use a different cause of action to recover damages for an entirely lawful termination.

Case: Peterec-Tolino v. Harap, NY Slip Op 09637 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: The court may extend the time for doing any act, as fixed by statute, rule or order, pursuant to CPLR 2004.

Practitioners should note that a certification order which directs plaintiff to file a note of issue within 90 days has the same effect as a valid 90-day notice pursuant to CPLR 3216.

Case: Oliver v. Town of Hempstead, NY Slip Op 09631 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: Without leave of court, plaintiff may serve a supplemental bill of particulars alleging continuing special damages, as long as it does not allege a new injury.

Practitioners should note that such a pleading is a supplemental bill, and not an amended bill.

Case: Maraviglia v. Lokshina, NY Slip 09624 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Court holiday.

The Courts are closed for today's holiday and so there is no post.

Tomorrow's issue: Motion practice.

Contracts.

Practice point: Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party.

Practitioners should note that, with a services contract, there may be liability to a third party where (1) the contracting party negligently launches an instrument of harm; (2) there is detrimental reliance on continued performance; or (3) the contracting party has entirely assumed the duty to safely maintain the premises.

Case: Kotara v. City of New York, NY Slip Op 09622 (2d Dept. 2009)

The opinion is here.

Tuesday’s issue: Motion practice.

Motion practice.

Practice point: A party has 120 days after filing a note of issue to move for summary judgment, after which it may do so only with leave of court, pursuant to CPLR 3212[a].

Practitioners should note that a trial court has discretion in determining whether to consider a motion made more than 120 days after the filing.

Case: Joson v. G & S Realty 1, LLC, NY Slip 09620 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Motion practice.

Practice point: Despite its remedial language, CPLR 2001 does not excuse a complete failure to file within the statute of limitations.

Practitioners should note that the papers served in an action must conform in all material respects to the papers that are filed to commence it.

Case: Goldenberg v. Westchester County Health Care Corp., NY Slip Op 09616 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: On a motion to dismiss on the ground that the action is time-barred, pursuant to CPLR 3211(a)(5), defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired.

Practitioners should note that, in order to sustain this burden, defendant must establish when the cause of action accrued.

Case: Cottone v. Selective Surfaces, Inc., NY Slip Op 09605 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: In seeking to restore a case more than one year after it has been dismissed pursuant to CPLR 3404, plaintiff must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to defendants.

Practitioners should note that plaintiff must satisfy all four elements before the dismissal can be vacated and the case restored.

Case: Bornstein v. Clearview Props., Inc., NY Slip Op 09602 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Contracts.

Practice point: While a contract for personal services is terminated by the servant’s death, a sales contract is not terminated by the buyer’s death.

Practitioners should note that where performance is possible, albeit unprofitable, the legal excuse of impossibility is not available.

Case: Warner v. Kaplan, NY Slip Op 09169 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.