Motion practice.

Practice point: A motion to dismiss based on CPLR 3211(a)(1) requires documentary evidence refuting plaintiff's factual allegations, establishing a defense as a matter of law.

Students should note that to be considered documentary, evidence must be unambiguous and of undisputed authenticity.

Case: Springer v. Almontaser, NY Slip Op 06081 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Labor Law.

Practice point: A separate prime contractor is not liable under for injuries to the employees of other contractors where there is no privity of contract.

Students should note, however that where that contractor has been delegated authority to supervise and control the work, the contractor becomes a statutory agent of the owner or general contractor.

Case: Barrios v. City of New York, NY Slip Op 06072 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A defendant looking to amend the answer to allege a counterclaim is not required to submit evidentiary proof.

Students should note that the tort of trade libel or injurious falsehood requires the knowing publication of false and derogatory statements calculated to prevent others from dealing with the plaintiff

Case: Banco Popular N. Am. v. Lieberman, NY Slip Op 06067 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Labor Law.

Landlord-Tenant Law.

Practice point: To establish constructive eviction, a tenant must prove wrongful acts that deprived him of the beneficial use and enjoyment of the premises.

Students should note that partial actual eviction requires that the tenant be physically prevented from using a portion of the premises

Case: Pacific Coast Silks, LLC v. 247 Realty, LLC, NY Slip Op 05887 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Practice point: At a fact-finding hearing in an abuse and/or neglect proceeding pursuant to Family Court Act article 10, the standard is a preponderance of the evidence.

Students should note that there is a religious exemption from the Public Health Law's immunization requirements, pursuant to Public Health Law § 2164(9)

Case:Matter of Isaac J., NY Slip Op 05997 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Landlord-Tenant Law.

Motion practice.

Practice point: There is no cause of action sounding in deceptive acts and practices, pursuant to General Business Law § 349, arising from a private contractual dispute.

Students should note that there is no cause of action for unjust enrichment if there is a valid agreement.

Case: Merin v. Precinct Developers, LLC, NY Slip Op 05691 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Family Law.

Motion practice.

Practice point: A certificate of acknowledgement attached to an instrument such as a deed raises a rebuttable presumption of due execution.

Students should note that if a deposition transcript is not sent to the deponent for review, pursuant to CPLR 3116(a), the transcript is inadmissible at trial.

Case: Moffett v. Gerardi, NY Slip Op 05990 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Absent evidence that defendant willfully and contumaciously failed to appear for deposition, the court will not strike the answer.

Students should note that the appropriate remedy is to preclude defendant from offering any testimony at trial.

Case: Cobenas v. Ginsburg Dev. Cos., LLC, NY Slip Op 05718 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Torts.

Practice point: The doctrine of primary assumption of the risk includes those risks associated with the construction of the playing surface, and any open and obvious condition on it.

Students should note that the mere fact that defendant could have provided safer conditions is beside the point where the risk is open and obvious.

Case: Bendig v. Bethpage Union Free School Dist., NY Slip Op 05715 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Motion practice.

Practice point: In deciding a motion, the court may search the record and award summary judgment to a nonmoving party, pursuant to CPLR 3212(b).

Students should note that, in the interest of justice, a court may consider newly submitted evidence in a motion to renew, even if it was available in the prior motion.

Case: Atiencia v. Mbbco Ii, LLC, NY Slip Op 05872 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Contracts.

Practice point: Where the language is not clear enough to enforce an obligation to indemnify, the court will not rewrite the contract to supply an obligation the parties themselves did not specify.

Students should note that attorney's fees are incidents of litigation, and a prevailing party may not collect except by express agreement, statute or court rule.

Case: Adesso Café Bar & Grill, Inc. v. Burton, NY Slip Op 05710 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.