Motion practice.

Practice point: The equitable doctrine of subrogation can be invoked when, to protect his own rights or property, a party is compelled to pay the debt of a third person.

Students should note that the doctrine cannot be invoked when the payments were voluntary.

Case: Broadway Houston Mack Dev., LLC v. Kohl, NY Slip Op 02500 (2d Dept. 2010)

Here is the opinion.

Monday's issue: School Law.

Torts.

Practice point: A property owner is not liable for damages resulting from a trivial defect over which a pedestrian stumbles or trips.

Students should note that, in determining whether a defect is trivial as a matter of law, the court will consider the width, depth, elevation, irregularity and appearance, along with the time, place and circumstances of the injury.

Case: Aguayo v. New York City Hous. Auth., NY Slip Op 02494 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: The law of the case does not apply to discretionary rulings regarding case management.

Students should note that when defendant has produced some documents and is willing to continue production, the sanction of striking an answer is inappropriate.

Case: Allstate Ins. Co. v. Buziashvili, NU Slip Op 02479 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Contracts.

Practice point: Absent a contract, a claim cannot sound in breach of the implied covenant of good faith and fair dealing.

Students should note that an implied contract requires specific and material promises in a school's publications.

Case: Keefe v. New York Law School, NY Slip Op 02477 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: In moving to dismiss pursuant to CPLR 3211(a)(5), defendant must establish, prima facie, that the time in which to commence the action has passed.

Students should note that the time is computed from the accrual of the cause of action to the interposition of the claim, pursuant to CPLR 203[a].

Case: Minskoff Grant Realty & Mgt. Corp. v. 211 Mgr. Corp., NY Slip Op 02108 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Contracts.

Motion practice.

Practice point: The fact that plaintiff was the only witness to the workplace accident does not preclude granting summary judgment in his favor.

Students should note that mere speculation is insufficient to defeat summary judgment.

Case:McCaffery v. Wright & Co. Constr.,Inc., NY Slip Op 02107 (2d Dept. 2010)

The opinion is here.

Monday's issue: Motion practice.

Motion practice.

Practice point: The court cannot convert a CPLR 3211 motion to dismiss into a CPLR 3212 motion for summary judgment.

Students should note that if plaintiff asserts a Labor Law § 740 cause of action, he waives any other cause of action based on the alleged retaliation.

Case: Garner v. China Natural Gas, Inc., NY Slip Op 02095 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Municipalities Law.

Practice point: Generally, the municipality is liabile for injuries resulting from negligent maintenance of a public sidewalk, or from a defective condition on the sidewalk.

Students should note that there is an exception where defendant created the defect.

Case: Elkman v. Consolidated Edison of N.Y., NY Slip Op 02088 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Motion practice.

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.

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.

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.