Motion practice.

Practice point: Recission is appropriate when defendant's fraud caused a significant injury and plaintiff has no adequate remedy at law.

Students should note that an action is not time-barred when it was asserted as a counterclaim in a prior proceeding and consolidated with the instant action, pursuant to CPLR 203(d).

Case: Shomron v. Griffin, NY Slip Op 00723 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Torts.

Property.

Practice point: An owner of land abutting a highway or street owns easements of light, air, and access, regardless of ownership of the highway or the street.

Practitioners should note that the landowner cannot prevent parking on the adjoining street unless it unreasonably interferes with access.

Case: Bryer v. Terleph, NY Slip Op 00642 (2d Dept. 2010)

The opinion is here.

Monday’s issue: Motion practice.

Evidence.

Practice point: Sanctions are available when a party destroys evidence that is essential to the opponent's claim or defense.

Practitioners should note that sanctions may result even if the destruction was not willful or contumacious.

Case: Awon v. Harran Transp. Co., Inc., NY Slip Op 00638 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Property.

Torts.

Practice point: Where plaintiff is a worker whose claim sounds in premises liability, the landowner's duty is to provide a safe place to work.

Practitioners should note that there is no duty to guard against hazards inherent in the work or caused by a condition the worker is repairing, or hazards that the worker can readily see.

Case: Schindler v. Ahearn, NY Slip Op 00501 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Evidence.

Motion practice.

Practice point: A party seeking to vacate an order entered upon a default must demonstrate a reasonable excuse and a meritorious cause of action or defense.

Practitioners should note that the determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion.

Case: Rivera v. Komor, NY Slip Op 00497 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Torts.

Court holiday.

The courts are closed again today, and so the next post will be tomorrow.

Tomorrow's issue: Motion practice.

Court holiday.

Today and Monday are court holidays, and so the next post will be on Tuesday, February 16.

Tuesday's issue: Motion practice.

Motion practice.

Practice point: Where a party makes a timely summary judgment motion, the court may consider an untimely motion, provided it is based on nearly identical grounds.

Practitioners should note that, in deciding the timely motion, the court may search the record and award summary judgment to a nonmoving party.

Case: Lennard v. Khan, NY Slip Op 00482 (2d Dept. 2010)

The opinion is here.

Tuesday’s issue: Motion practice.

Motion practice.

Practice point: Where a party makes a timely summary judgment motion, the court may consider an untimely motion, provided it is based on nearly identical grounds.

Practitioners should note that, in deciding the timely motion, the court may search the record and award summary judgment to a nonmoving party.

Case: Lennard v. Khan, NY Slip Op 00482 (2d Dept. 2010)

The opinion is here.

Tuesday’s issue: Motion practice.

Contracts.

Practice point: Reformation restates an agreement's intended terms when the writing is at variance with the intent of the parties.

Practitioners should note that the reformation's proponent must establish cause by clear and convincing evidence.

Case: Kaliontzakis v. Papadakos, NY Slip Op 00478 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: A cause of action sounding in negligent hiring or supervision requires a showing that the employer knew or should have known of the employee's propensity for the injury-causing conduct.

Practitioners should note that there is no common-law duty regarding hiring procedures unless the employer knows something that a reasonably prudent person would investigate.

Case: Jackson v. New York Univ. Downtown Hosp., NY Slip Op 00476 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Contracts.