Contracts.

Practice point: Parol testimony is admissible to prove a condition precedent to the effectiveness of a written agreement, if the condition does not contradict agreement’s express terms.

Students should note that oral conditions may not be added to a signed and written real estate sales contract when its delivery was to the other party's agent.

Case: Torres v. D’Alesso, NY Slip Op 07127 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Ethics.

Practice point: The Court may suspend an attorney pending consideration of charges of misconduct, or upon the attorney’s failure to comply with a lawful demand of the Court or of the Departmental Disciplinary Committee.

Students should note that the attorney’s failure to respond to the Committee's inquiries, and failure to respond to the Committee’s motion to suspend, will result in an immediate suspension.

Case: Matter of Bautista, NY Slip Op 07126 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Contracts.

Motion practice.

Practice point: The court cannot dismiss a complaint for failure to prosecute if plaintiff has shown a justifiable excuse for the delay and a potentially meritorious cause of action, pursuant to CPLR 3216.

Students should note that plaintiff might avoid dismissal even without this dual showing.

Case: Gibson v. Fakheri, NY Slip Op 07141 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Ethics.

Motion practice.

Practice point: In an action pleaded in products liability, breach of warranty or negligence, plaintiff must prove that the alleged defect was a substantial cause of the injury-producing event.

Students should note that defendants are liable for the foreseeable consequences of their acts, but plaintiffs need not demonstrate the foreseeability of the exact manner in which the accident happened.

Case: Fahey v. A.O. Smith Corp., NY Slip Op 07139 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

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.