Torts.

Practice point: An action to recover damages arising from an attorney's alleged malpractice must be commenced within three years from accrual.

Students should note that the statute of limitations may be tolled by the doctrine of continuous representation.

Case: Leon Petroleum, LLC v. Carl S. Levine & Assoc., P.C., NY Slip Op 00193 (2d Dept. 2011)

Here is the decision.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: When evidentiary proof is offered on a CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action, the issue is whether plaintiff has a cause of action, not whether the pleading states one.

Students should note that, otherwise, the court must accept the pleaded facts as true, accord plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit any cognizable legal theory.

Case: Holster v. Cohen, NY Slip Op 00187 (2d Dept. 2011)

Here is the decision.

Monday’s issue: Torts.

Motion practice.

Practice point: To avoid dismissal for failure to timely serve a complaint after a demand has been made pursuant to CPLR 3012(b), plaintiff must demonstrate a reasonable excuse and a potentially meritorious cause of action.

Students should note that a motion for leave to renew requires new facts that would change the prior determination, and a reasonable justification for the failure to present those facts on the prior motion.

Case: Grace v. Follini, NY Slip Op 00182 (2d Dept. 2011)

Here is the decision.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A motion to dismiss relying on documentary evidence must utterly refute plaintiff’s factual allegations, conclusively establishing a defense as a matter of law.

Students should note that the reasonableness of notice is not an issue that lends itself to determination on a CPLR 3211 motion.

Case: DKR Soundshore Oasis Holding v. Merrill Lynch Intl., NY Slip Op 00036 (1st Dept. 2011)

Here is the decision.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: An e-mail, under which the sending party's name is typed, can constitute a writing for purposes of the statute of frauds, pursuant to General Obligations Law § 5-701[b][4].

Students should note that that fact that defendant did not sign the agreement setting forth the details of its commission is not fatal either under the statute of frauds or as to enforceability, when there is documentary evidence of an agreement regarding the commission.

Case: Newmark & Co. Real Estate, Inc. v. 2615 E. 17 Realty LLC, NY Slip Op 00158 (1st Dept. 2011)

Here is the decision.

Tomorrow’s issue: Motion practice.

Court holiday.

Today is a Court holiday, and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue: Motion practice.

Employment Law.

Practice point: In an action alleging unlawful termination in violation of Labor Law § 740, the complaint will be dismissed if plaintiff fails to plead the violation of a law, rule or regulation.

Students should note that pleading a violation of the employer’s internal policies is insufficient.

Case: Cohen v. Hunter College, NY Slip Op 00040 (1st Dept. 2011)

Here is the decision.

Tuesday’s issue: Motion practice.

Motion practice.

Practice point: A motion for leave to amend a notice of claim will be granted if the error was made in good faith and the municipality has not been prejudiced, pursuant to General Municipal Law § 50-e[6].

Students should note that the fact that, nine months after the accident, plaintiff gave the correct building address in the complaint and bill of particulars does not mitigate the prejudice.

Case: Pelaez v. City of New York, NY Slip Op 09900 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: Medical record statements regarding the way the accident happened are admissible as business records if they were germane to diagnosis or treatment.

Students should note that statements might be admissible as admissions if they are inconsistent with plaintiff’s current account of the accident, and if they are satisfactorily connected to the patient.

Case: Kamolov v. BIA Group, LLC, NY Slip Op 09890 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: A claim of conversion cannot be predicated on a mere breach of contract.

Students should note that a contracting party may be charged with a separate tort liability arising from a breach of a duty distinct from, or in addition to, the breach of contract.

Case: East Ends Labs., Inc. v. Sawaya, NY Slip Op 09885 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: It is axiomatic in New York that where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or for no reason at all.

Students should note that the rule cannot be circumvented by framing the cause of action as tortuous interference with an employment relationship.

Case: Sullivan v. Harnisch, NY Slip Op 09407 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Torts.