Torts.

Practice point: An accountant may be liable in negligence to a third party if the accountant knew that the financial reports were to be used for a particular purpose, and that they would be relied on.

Students should note that in order to establish accounting fraud, plaintiff must show misrepresentation of material fact, scienter, reliance and damages.

Case: Barrett v Freifeld, NY Slip Op 07130 (2d Dept. 2010)

Here is the decision.

Monday's issue: Motion practice.

Torts.

Practice point: A condition that is ordinarily apparent may be considered a trap where the condition is obscured or the plaintiff is distracted.

Students should note that proof that a dangerous condition is open and obvious merely negates defendant's obligation to warn, but does not preclude the landowner's liability for not maintaining the property in a safe condition.

Case: Villano v. Strathmore Terrace Homeowners Assn., Inc., NY Slip Op 06789 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Motion practice.

Practice point: The motion to amend the bill of particulars will be denied when it was made four months after the note of issue was filed, and four years after the action was commenced.

Students should note that the claim of plaintiffs' counsel that he relied on his client's statement that the subject stairs were being renovated, and so he did not inspect them until four years after the accident, does not constitute a reasonable excuse for the delay in moving.

Case: Cintron v. New York City Transit Authority, NY Slip Op 07078 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Motion practice.

Practice point: No defamation claim lies if a complaint's allegations are pertinent to the action, since they are protected by the judicial proceedings privilege.

Students should note that the one-year statute of limitations for libel and slander starts to run on the date of publication.

Case: Casa de Meadows, Inc. v. Zaman, NY Slip Op 06712 (1st Dept 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Court holiday.

The courts are closed today, and so there is no post.

Tomorrow's issue: Motion practice.

Insurance Law.

Practice point: An insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered.

Students should note that a subcontractor's obligation to replace work it damages goes to potential liability and does not create an insurable interest in the entire building.

Case: St. Paul Fire v. FD Sprinkler, NY Slip Op 06755 (1st Dept. 2010)

Here is the decision.

Tuesday's issue: Torts.

Contracts.

Practice point: Plaintiff's knowledge of defendant's wrong act is not necessary to start the running of the Statute of Limitations.

Students should note that no appeal lies from a ruling made during oral argument.

Case: de Hermandez v. Bank of Nova Scotia, NY Slip Op 06754 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Insurance Law.

Ethics.

Practice point: Disbarment is warranted where there is a pattern of neglect of client matters and a failure to comply with court orders.

Students should note that the Court gives significant weight to the discipline imposed by the jurisdiction where disciplinary charges were originally brought, even if a different sanction would have been imposed in New York.

Case: Matter of Jaffe, NY Slip Op 06717 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Contracts.

Motion practice.

Practice point: A defendant looking to vacate a default judgment must demonstrate a reasonable excuse and a potentially meritorious defense.

Students should note that defendant's excuse that the insurer disclaimed coverage and that she could not afford an attorney is insufficient as a matter of law.

Case: O'Donnell v. Frangakis, NY Slip Op 06622 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Ethics.

Family Law.

Practice point: A custody agreement will not be set aside unless there is a significant change in circumstances, and the modification is in the best interests of the child.

Students should note that a noncustodial parent seeking the change must make an evidentiary showing sufficient to warrant a hearing.

Case: Jurgensen v. Jurgensen, NY Slip Op 06617 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Stipulations of settlement are contracts and will be interpreted as such.

Students should note that the stipulation will be undone only on cause sufficient to invalidate a contract, such as fraud or mistake.

Case: Singh v. North Shore Univ. Hosp., NY Slip Op 06626 (2d Dept. 2010)

Here is the decision.

Monday's issue: Family Law.