Motion practice.

Practice point: A sanction for spoliation requires a showing that the other side disposed of critical evidence, fatally compromising the ability to defend the action.

Students should note that, generally, striking a pleading is reserved for instances of willful or contumacious conduct.

Case: Scordo v. Costco Wholesale Corp., NY Slip Op 07324 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Corporations.

Motion practice.

Practice point: A cause of action based on promissory estoppel requires a clear and unambiguous promise; reliance by the party to whom the promise is made; and an injury sustained because of that reliance.

Students should note that Civil Rights Law § 80-b serves only to return the parties to their position prior to their becoming engaged if the marriage fails to materialize.

Case: Schwartz v. Miltz, NY Slip Op 07323 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Labor Law.

Practice point: A cause of action sounding in a violation of Labor Law § 200 or common-law negligence may arise either from a dangerous condition at the work site, or from the way the work was performed.

Students should note that the owner is not liable solely because it had notice of the way in which the work was being performed.

Case: Pilato v. 866 U.N. Plaza Assoc., LLC, NY Slip Op 07157 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: A property owner is not liable for accidents resulting from the accumulation of snow or ice for a reasonable period of time after the storm has stopped.

Students should note that the question of whether a reasonable period of time had passed may be decided as a matter of law.

Case: Lanos v. Cronheim, NY Slip Op 07149 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Labor Law.

Motion practice.

Practice point: CPLR 208’s infancy toll is personal to the infant, and does not extend to a derivative cause of action.

Students should note that by demonstrating that defendant had timely knowledge of the facts underlying the claim, plaintiff establishes a lack of substantial prejudice on a motion for late service of the notice of claim.

Case: Kim L. v. Port Jervis City School Dist., NY Slip Op 07148 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Torts.

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.