Practice point: Denying receipt of the summons and complaint does not rebut the presumption of proper service created by an affidavit of service.
Students should note that an insurance carrier's delay in defending does not establish a reasonable excuse for a default.
Case: Gartner v. Unified Windows, Doors and Siding, Inc., NY Slip Op 01759 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 16, 2010
March 15, 2010
Motion practice.
Practice point: Defendant waives the physician-patient privilege by asserting the affirmative defense of unanticipated medical emergency, pursuant to CPLR 3121[a] and CPLR 4504[a].
Students should note that a motion to strike the answer for failure to comply with discovery demands will be denied if plaintiff does not demonstrate the relevance of the medical records.
Case: Rivera v. New York City Transit Authority, NY Slip Op 01737 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that a motion to strike the answer for failure to comply with discovery demands will be denied if plaintiff does not demonstrate the relevance of the medical records.
Case: Rivera v. New York City Transit Authority, NY Slip Op 01737 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 12, 2010
Motion practice.
Practice point: There is no appeal from a motion to reargue.
Students should note that the motion should be based on newly discovered facts, pursuant to CPLR 2221[e], but courts may use their discretion in the interest of justice.
Case: Sirico v. F.G.G. Prods., Inc., NY Slip Op 01733 (1st Dept. 2010)
The opinion is here.
Monday's issue: Motion practice
Students should note that the motion should be based on newly discovered facts, pursuant to CPLR 2221[e], but courts may use their discretion in the interest of justice.
Case: Sirico v. F.G.G. Prods., Inc., NY Slip Op 01733 (1st Dept. 2010)
The opinion is here.
Monday's issue: Motion practice
March 11, 2010
Contracts.
Practice point: When parties set down their agreement in a clear, complete document, the writing will be enforced according to its terms.
Students should note that evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing.
Case: Gladstein v. Martorella, NY Slip Op 01732 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing.
Case: Gladstein v. Martorella, NY Slip Op 01732 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 10, 2010
Labor Law.
Practice point: § 240(1) applies when the falling of an object is related to a significant risk resulting from the elevation at which materials must be positioned or secured.
Students should note that the fact that plaintiff was working at an elevation when the object fell is not relevant in a falling object case.
Case: Garzon v. MTA, NY Slip Op 01540(1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Contracts.
Students should note that the fact that plaintiff was working at an elevation when the object fell is not relevant in a falling object case.
Case: Garzon v. MTA, NY Slip Op 01540(1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Contracts.
March 9, 2010
Real Estate Law.
Practice point: Judicial review of decisions made by a condominium's board is limited to whether the action was authorized, and whether it was taken in good faith and in furtherance of the condominium's interests.
Students should note that a permanent injunction may issue if the board acts outside the scope of its authority.
Case: Kaung v. Board of Mgrs. of Biltmore Towers Condominium Assn., NY Slip Op 01620 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Labor Law.
Students should note that a permanent injunction may issue if the board acts outside the scope of its authority.
Case: Kaung v. Board of Mgrs. of Biltmore Towers Condominium Assn., NY Slip Op 01620 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Labor Law.
March 8, 2010
Torts.
Practice point: To establish, as a matter of law, that he was free from comparative negligence, plaintiff must state in his initial affidavit that he used reasonable care in entering the crosswalk where the accident happened.
Students should note that plaintiff's failure to make a prima facie showing requires the denial of summary judgment, regardless of the sufficiency of the opposition papers.
Case: Lum v. Wallace, NY Slip Op 01625 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Real Estate Law.
Students should note that plaintiff's failure to make a prima facie showing requires the denial of summary judgment, regardless of the sufficiency of the opposition papers.
Case: Lum v. Wallace, NY Slip Op 01625 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Real Estate Law.
March 5, 2010
Labor Law.
Practice point: The collapse of a wall is not the type of elevation-related accident that § 240(1) is intended to guard against.
Students should note that an injury resulting from being struck by an object loosened by vibration is merely a hazard incidental to the workplace.
Case: Kaminski v. 53rd St. and Madison Tower Dev., LLC, NY Slip Op 01532 (1st Dept. 2010)
The opinion is here.
Monday's issue: Torts
Students should note that an injury resulting from being struck by an object loosened by vibration is merely a hazard incidental to the workplace.
Case: Kaminski v. 53rd St. and Madison Tower Dev., LLC, NY Slip Op 01532 (1st Dept. 2010)
The opinion is here.
Monday's issue: Torts
March 4, 2010
Torts.
Practice point: A viable claim against a professional requires a contractual underlying relationship or a relationship that is the functional equivalent of contractual privity.
Students should note that, standing alone, an ethical violation will not create a duty giving rise to a cause of action that would otherwise not exist at law.
Case: Art Capital Group, LLC v. Neuhaus, NY Slip Op 01600 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Labor Law.
Students should note that, standing alone, an ethical violation will not create a duty giving rise to a cause of action that would otherwise not exist at law.
Case: Art Capital Group, LLC v. Neuhaus, NY Slip Op 01600 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Labor Law.
March 3, 2010
Motion practice.
Practice point: When 30 mph winds allegedly caused a piece of plywood to become airborne, the "act of God" affirmative defense will be dismissed since such winds do not constitute an unusual, extraordinary and unprecedented event.
Students should note that defendant's meteorologist's claim of wind gusts over 70 mph is unavailing if it is unsupported by data or methodology.
Case: Verdugo v. Seven Thirty One Ltd. Partnership, NY Slip Op 01595 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Torts.
Students should note that defendant's meteorologist's claim of wind gusts over 70 mph is unavailing if it is unsupported by data or methodology.
Case: Verdugo v. Seven Thirty One Ltd. Partnership, NY Slip Op 01595 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Torts.
Motion practice.
Practice point: When 30 mph winds allegedly caused a piece of plywood to become airborne, the "act of God" affirmative defense will be dismissed since such winds do not constitute an unusual, extraordinary and unprecedented event.
Students should note that defendant's meteorologist's claim of wind gusts over 70 mph is unavailing if it is unsupported by data or methodology.
Case: Verdugo v. Seven Thirty One Ltd. Partnership, NY Slip Op 01595 (1st Dept. 2010)
Tomorrow's issue: Torts.
Students should note that defendant's meteorologist's claim of wind gusts over 70 mph is unavailing if it is unsupported by data or methodology.
Case: Verdugo v. Seven Thirty One Ltd. Partnership, NY Slip Op 01595 (1st Dept. 2010)
Tomorrow's issue: Torts.
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