Corporations.

Practice point: A general partner’s fiduciary duty to limited partners continues until the closing of a buy-out transaction.

Students should note that, generally if a fiduciary sells property for an inadequate price the measure of damages is the difference between what was received and what should have been received. However, there is an appreciation of damages if the fiduciary engaged in self-dealing.

Case: Frame v. Maynard, NY Slip Op 08430 (1st Dept. 2010)

Here is the decision.

Monday’s issue: Contracts.

Real Estate Law.

Practice point: There is a presumption that a tenant in common in possession holds the property for the benefit of the cotenant, pursuant to Real Property Actions and Proceedings Law § 541.

Students should note that the presumption ceases only after 10 years exclusive occupancy or upon ouster.

Case: Bank of Am., N.A. v. 414 Midland Ave. Assoc., LLC, NY Slip Op 08053 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Corporations.

Motion practice.

Practice point: Leave to conform a pleading to the proof, pursuant to CPLR 3025(c), will be freely granted.

Students should note that lateness, absent prejudice, is not a barrier to the amendment.

Case: Worthen-Caldwell v. Special Touch Home Care Servs., Inc., NY Slip Op 08096 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Real Estate Law.

Motion practice.

Practice point: Generally, a declaratory judgment action is governed by the six-year catch-all statute of limitations of CPLR 213(1).

Students should note that if the action could have been brought in a different form, asserting a particular cause of action, the limitations period applicable to that cause of action will apply.

Case: Walter v. Starbird-Veltidi, NY Slip Op 08095 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: Evidentiary rulings are not appealable, either as of right or by permission, pursuant to CPLR 5701.

Students should note that a motion to set aside a jury verdict, pursuant to CPLR 4404, requires a showing that no line of reasoning and permissible inference would lead a rational person to the jury’s finding.

Case: Rosenfeld v. Baker, NY Slip Op 08087 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: A cause of action sounding in fraudulent representation requires a showing that defendant spoke a falsehood intending to deprive plaintiff of a benefit, and that plaintiff was thereby damaged.

Students should note that the heightened pleading standard of CPLR 3016(b) requires only that the allegation be set forth so that defendant is informed of the incident complained of.

Case: RBE Northern Funding, Inc. v. Stone Mountain Holdings, LLC, NY Slip Op 08086 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Motion practice.

Court holiday.

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

Happy Thanksgiving, and thank you for your support throughout the year.

Tomorrow’s issue: Torts.

Landlord-Tenant Law.

Practice point: Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including a third party's criminal conduct.

Students should note that a tenant’s recovery of damages requires a showing that the landlord's negligence was a proximate cause of the injury.

Case: Muong v. 550 Ocean Avenue, LLC, NY Slip Op 08078 (2d Dept. 2010)

Here is the decision.

Friday’s issue: Torts.

Attorney-client relations.

Practice point: Filing the requisite retainer statement with the Office of Court Administration is a necessary to receiving a fee.

Students should note filing nunc pro tunc will preserve the right to recover a fees, but only if the attorney sought leave of court for the filing.

Case: Giano v. Ioannou, NY Slip Op 08064 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Landlord-Tenant Law.

Torts.

Practice point: If a private physician attends a patient at a hospital, it is the physician’s duty, not the hospital’s, to get the patient's informed consent.

Students should note that a hospital employee's memorializing the consent does not transfer the duty to the hospital.

Case: Sela v. Katz, NY Slip Op 07918 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Attorney-client relations.

Attorney-client relations.

Practice point: Pursuant to Judiciary Law § 475, from the commencement of the action, the appearing attorney has a lien on the client's cause of action, and the lien attaches to any favorable final order or settlement.

Students should note that the lien is forfeited if the attorney withdraws without sufficient cause.

Case: Nassour v. Lutheran Medical Center, NY Slip Op 07906 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Torts.