Motion practice.

Practice point: Conduct during litigation is frivolous and subject to sanction and/or the award of costs, including an attorney's fee, when: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false, pursuant to 22 NYCRR 130-1.1[c].

Practitioners should note that, to avoid sanctions, at the least, the conduct must have a good faith basis.

Case: Dank v. Sears Holding Mgt. Corp., NY Slip Op 00093 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Employment Law.

Contracts.

Practice point: As a general rule, a party who enters into a contract to render services does not assume a duty of care to parties outside the contract.

Practitioners should note that a recognized exception to this rule exists where a defendant who undertakes to render services negligently creates or exacerbates a dangerous condition.

Case: Cooper v. American Carpet & Restoration Servs., Inc., NY Slip Op 00091 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Motion practice.

Legal malpractice.

Practice point: There was no malpractice if, in a prior action, fees were awarded for services which plaintiff now alleges were performed negligently.

Practitioners should note that failure to raise a malpractice claim when fee applications are considered by a Bankruptcy Court bars raising the claim later.

Case: Breslin Realty Dev. Corp. v. Shaw, NY Slip Op 00087 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Contracts.

Labor Law.

Practice point: 12 NYCRR 23-1.7(b)(1), which provides, among other things, that every hazardous opening into which a person may step or fall must be guarded by a substantial cover fastened in place or by a safety railing, is sufficiently specific to support a § 241(6) claim.

Practitioners should note that a 11/2 to 2 feet-deep trench is not a hazardous opening within the meaning of the Code.

Case: Barillaro v. Beechwood RB Shorehaven, LLC, NY Slip Op 00085 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

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.