Practice point: Plaintiff's failure to plead that the fee dispute was not covered by the Fee Dispute Resolution Program, pursuant to 22 NYCRR 136.1[b][2],[6], is not a jurisdictional defect precluding service of an amended complaint.
Students should note that an amended complaint supersedes the original, which is without legal effect.
Case: Nimkoff Rosenfeld & Schechter, LLP v. O'Flaherty, NY Slip Op 02067 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Municipalities Law.
March 30, 2010
March 29, 2010
Torts.
Practice point: A complaint sounding in defamation must allege the spoken or published words.
Students should note that the words need not be set in quotation marks.
Case: Moreira-Brown v. City of New York, NY Slip Op 02063 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that the words need not be set in quotation marks.
Case: Moreira-Brown v. City of New York, NY Slip Op 02063 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 26, 2010
Motion practice.
Practice point: When served with a 90-day demand, plaintiff must seek an extension to comply, move to vacate the notice, or file a note of issue.
Students should note that law office failure is not a reasonable excuse for the failure to file.
Case: Cadichon v. Facelle, NY Slip Op 02058 (1st Dept. 2010)
The opinion is here.
Monday's issue: Torts.
Students should note that law office failure is not a reasonable excuse for the failure to file.
Case: Cadichon v. Facelle, NY Slip Op 02058 (1st Dept. 2010)
The opinion is here.
Monday's issue: Torts.
March 25, 2010
Motion practice.
Practice point: Mere lack of diligence in furnishing requested materials is not a ground for striking a pleading.
Students should note that monetary sanctions may result from defendant's repeated delays and repeated failure to comply with discovery orders.
Case: Elias v. City of New York, NY Slip Op 02013 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that monetary sanctions may result from defendant's repeated delays and repeated failure to comply with discovery orders.
Case: Elias v. City of New York, NY Slip Op 02013 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 24, 2010
Motion practice.
Practice point: Defendant fails to allege a counterclaim for breach of contract if he does not identify the terms of the agreement.
Students should note that a counterclaim cannot sound in legal malpractice if the litigation steps plaintiff took were among several reasonable options.
Case: Sklover & Donath, LLC v. Eber-Schmid, NY Slip Op 02002 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that a counterclaim cannot sound in legal malpractice if the litigation steps plaintiff took were among several reasonable options.
Case: Sklover & Donath, LLC v. Eber-Schmid, NY Slip Op 02002 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 23, 2010
Contracts.
Practice point: The agreement should be read as a whole to ensure that undue emphasis is not placed on particular words and phrases.
Students should note that extrinsic evidence may not be considered unless it is determined as a matter of law that the agreement is ambiguous.
Case: Burlington Ins. Co. v. Utica First Ins. Co., NY Slip Op 01906 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that extrinsic evidence may not be considered unless it is determined as a matter of law that the agreement is ambiguous.
Case: Burlington Ins. Co. v. Utica First Ins. Co., NY Slip Op 01906 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 22, 2010
Motion practice.
Practice point: A defendant may move to change the place of trial within fifteen days after service, unless plaintiff consents to the change of venue within five days of service, pursuant to CPLR 511[b].
Students should note that a default judgment should not be entered if a delay in answering is brief and plaintiff alleges no prejudice.
Case: Siwek v. Phillips, NY Slip Op 01848 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Contracts.
Students should note that a default judgment should not be entered if a delay in answering is brief and plaintiff alleges no prejudice.
Case: Siwek v. Phillips, NY Slip Op 01848 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Contracts.
March 19, 2010
Motion practice.
Practice point: Under an exception to the statute of frauds, the promise need not be in writing if it is supported by new consideration, and the parties intend the promisor to be a principal debtor and primarily liable.
Students should note that, under the doctrine of tortious misrepresentation, if a person knowingly and falsely claims to have power to bind another, he is liable for losses resulting from justifiable reliance on the claim.
Case: DePetris & Bachrach, LLP v. Srour, NY Slip Op 01840 (1st Dept. 2010)
The opinion is here.
Monday's issue: Motion practice.
Students should note that, under the doctrine of tortious misrepresentation, if a person knowingly and falsely claims to have power to bind another, he is liable for losses resulting from justifiable reliance on the claim.
Case: DePetris & Bachrach, LLP v. Srour, NY Slip Op 01840 (1st Dept. 2010)
The opinion is here.
Monday's issue: Motion practice.
March 18, 2010
Labor Law.
Practice point: To recover under § 240(1), a plaintiff must demonstrate that a statutory violation proximately caused the injury.
Students should note that the statute protects against a gravity-related hazard that requires a safety device.
Case: Sinkaus v. Regional Scaffolding & Hoisting Co., Inc., NY Slip Op 01885 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that the statute protects against a gravity-related hazard that requires a safety device.
Case: Sinkaus v. Regional Scaffolding & Hoisting Co., Inc., NY Slip Op 01885 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 17, 2010
Motion practice.
Practice point: The complaint is a necessary part of the record on a summary judgment motion.
Students should note that, pursuant to CPLR 3213[b], the motion must be supported by copies of the pleadings.
Case: Williams v. Nelson, NY Slip Op 01883 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Labor Law.
Students should note that, pursuant to CPLR 3213[b], the motion must be supported by copies of the pleadings.
Case: Williams v. Nelson, NY Slip Op 01883 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Labor Law.
March 16, 2010
Motion practice.
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.
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.
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