Motion practice.

Practice point: Attempted service is defective when the mailing is sent to defendant's workplace in an envelope indicating it is from a law firm.

Students should note that a court may compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay, pursuant to CPLR 3012[d].

Case: Gazes v. Bennett, NY Slip Op 01575 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Remedies.

Dog bites.

Practice point: There is strict liability for harm caused by a dog whose owner knew or should have known of the animal's vicious propensities.

Students should note that the owner will establish prima facie a lack of knowledge by demonstrating the dog had never before been aggressive, growled, bared its teeth or bitten anyone.

Case: Levine v. Kadison, NY Slip Op 00819 (2d Dept. 2010)

The opinion is here.

Monday's issue: Motion practice.

Employment Law.

Practice point: An employer can unilaterally change an at-will employee's draw against commissions going forward.

Students should note that by continuing the employment the employee accepts the new compensation terms, even without signing the formal notice of them.

Case: Kronick v. L.P. Thebault Co., Inc., NY Slip Op 00816 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Dog bites.

Landlord-Tenant Law.

Practice point: When a tenant does not timely request a temporary restraining order, a court cannot grant a Yellowstone injunction that would toll the running of the cure period.

Students should note that a court cannot reinstate a lease after the lapse of time specified to cure a default.

Case: Korova Milk Bar of White Plains, Inc. v. PRE Props., LLC, NY Slip Op 00815 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Employment Law.

Torts.

Practice point: Awareness of a compressor's internal leak does not raise an issue of fact as to defendant's actual or constructive notice of oil on the floor.

Students should note that, absent a maintenance contract, an independent contractor has no duty to install safety devices or to inspect or warn of alleged defects.

Case: Bevilacqua v. Bloomberg, L.P., NY Slip Op 00728 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Landlord-Tenant Law.

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.