Motion practice.

Practice point: In opposing a motion for a default judgment, an affidavit of merit is not necessary if an order has not been entered.

Students should note that an insurance carrier's delay in assigning counsel is reasonable cause for a defendant's default in answering.

Case: Arrington v. Bronx Jean Co., NY Slip Op 06399 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Torts.

Trusts and Estates.

Practice point: A power of attorney that is coupled with an interest or which has been given in exchange for valuable consideration is irrevocable.

Students should note that, in order for a power to be considered coupled with an interest, the agent must have a personal estate in the thing or matter underlying the power.

Case: Frankel v. J.P. Morgan Chase, NY Slip Op 06476 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Real Estate Law.

Practice point: New York law imposes no duty on the seller to disclose anything about the property when the parties deal at arm's length, unless there is active concealment.

Students should note that the seller's silence, standing alone, does not amount to an actionable concealment.

Case: Beach 104 St. Realty, Inc. v. Kisslev-Mazel Realty, LLC, NY Slip Op 06474 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Trusts and Estates.

Ethics.

Practice point: An attorney's failure over the course of nine months to commence an action is sanctionable as neglect within the meaning of DR 6-101(A)(3).

Students should note that the issue of the statute of limitation's expiration is irrelevant.

Case: Matter of Block, NY Slip Op 06400 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Real Estate Law.

Happy Labor Day.

Because of the Court holiday, there is no post today.

Tomorrow's issue: Ethics.

Administrative Law.

Practice point: A petitioner objecting to an agency's acts must exhaust administrative remedies before commencing litigation.

Students should note that an exception is where the act is challenged as unconstitutional or beyond the agency's power.

Case: Pitts v. N.Y. City Off. of Comptroller, NY Slip Op 06422 (2d Dept. 2010)

Here is the opinion.

Tuesday's issue: Ethics.

Motion practice.

Practice point: The writ of prohibition is available only where there is a clear legal right, and only in those cases where a court acts or threatens to act in excess of its powers.

Students should note that it is not available to correct errors of substantive law or procedure, however grievous.

Case: Dowd v. Buchter, NY Slip Op 06419 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Administrative Law.

Motion practice.

Practice point: Ignorance of the notice of claim requirement is not a reasonable excuse for failure to timely serve.

Students should note that petitioner must establish that late notice would not be prejudicial, and that the City had actual knowledge of the essential facts within 90 days of the claim's accrual.

Case: Bush v. City of New York, NY Slip Op 06417 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Mental Hygiene Law.

Practice point: Involuntary admission for psychiatric treatment requires clear and convincing evidence that the patient poses a substantial threat of physical harm to himself or others.

Students should note that the hospital's director must forthwith notify Mental Hygiene Legal Services, and the patient is entitled to a hearing within five days of requesting it.

Case: Rueda v. Charmaine D., NY Slip Op 06393 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Courts will liberally allow persons to intervene in actions where they have a bona fide interest in an issue.

Students should note that distinctions between intervention as of right and discretionary intervention are not shaply applied.

Case: Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, NY Slip Op 06401 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Mental Hygiene Law.

Trial practice.

Practice point: The standard for determining if a jury verdict is contrary to the weight of the evidence is whether the evidence so favors the unsuccessful party that it could not have been reached on any fair interpretation.

Students should note that if the verdict can be reconciled with a reasonable interpretation of the evidence, the successful party is entitled to the presumption that the jury adopted that view.

Case: Courbertier v. Academy Bus, LLC, NY Slip Op 06289 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.