Ethics.

Practice point: Public censure is the appropriate sanction in situations involving neglect, where the conduct is aberrational and the attorney has shown remorse and has cooperated in the disciplinary process.

Students should note that public censure is likewise appropriate in the case of a false notarization, where there are mitigating factors.

Case: Matter of Essien, NY Slip Op 06512 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Municipalities Law.

Motion practice.

Practice point: A party is required to preserve a claim that the jury verdict is inconsistent.

Students should note that the issue must be raised before the jury is discharged.

Case: Arrieta v. Shams Waterproofing, Inc., NY Slip Op 06508 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Ethics.

Torts.

Practice point: A targeted attack on an apartment building's resident does not result in a landlord's liability for failure to provide security.

Students should note that when the action is dismissed as against defendant, defendant's cross-claim is dismissed.

Case: Flynn v. Esplanade Gardens, Inc., NY Slip Op 06506 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

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.