Preclusion orders.

Practice point: A defendant's preclusion from introducing evidence at trial does not automatically entitle plaintiff to summary judgment.

Students should note that a preclusion order is unlike the striking of an answer, which effectively resolves a claim against the non-disclosing defendant.

The case is Mendoza v. Highpoint Assoc., IX, LLC, NY Slip Op 01719 (1st Dept. 2011).

Here is the decision.

Monday's issue is Labor Law.

Landlord-Tenant Law.

Practice point: There is no right to succeed to an apartment, absent a showing that the unit was petitioner's primary residence for the required time period.

Students should note that, although petitioner offered evidence that he lived in the apartment, he did not offer evidence in proper form, such as a notice of change or income affidavits,

establishing that he lived there for two years prior to the tenant of record's death.

The case is Matter of Cognata v. New York State Div. of Hous. & Community Renewal, NY Slip Op 01709 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is preclusion orders.

Dog bites.

Practice point: Defendant-landlord established prima facie that it neither knew nor had reason to know that tenant's dog had vicious propensities. Although the building superintendent testified that other tenants were afraid of the pit bull, he also said that he had never received any complaints about the animal or saw it acting aggressively. He noted that, when he encountered the dog in the hallway, the dog passed him "at ease." 

Students should note that plaintiff's testimony that, on the day before the attack, the dog had growled at him does not support the inference that defendant knew or should have known of the dog's vicious propensities. Nor is it significant that the tenant allegedly tied the dog when it was in the apartment, absent evidence that he did so because he feared that the dog would attack a visitor.

The case is Orozco v. 725 S. Blvd., LLC, NY Slip Op 01706 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is Landlord-Tenant Law.

Assumption of the risk.

Practice point: Rollerblading on a public sidewalk does not constitute a sponsored sporting event or recreational activity for the purpose of applying the doctrine.

Students should note that the doctrine is limited to protecting sponsors of sporting and recreational activities from liability for damages arising from participation in those activities.

The case is Ashbourne v. City of New York, NY Slip Op 01687 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is dog bites.

Legal malpractice.

Practice point: Expert testimony is needed to establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the profession.

Students should note that attorneys are free to select among reasonable courses of action in prosecuting clients' cases without exposing themselves to liability for malpractice.

The case is Healy v. Finz & Finz, P.C., NY Slip Op 01616 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is assumption of the risk.

Fraudulent inducement and promissory fraud.

Practice point: General allegations that defendant entered into a contract while lacking the intent to perform it are insufficient to support the claim.

Students should note that if adverse information about defendant was readily verifiable through public records, there could be no justifiable reliance on defendant's misrepresentations.

The case is Fariello v. Checkmate Holdings, LLC, NY Slip Op 01592 (1st Dept. 2011).

Here is the decision.

Monday's issue is legal malpractice.

Legal malpractice.

Practice point: A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that the settlement was effectively compelled by the mistakes of counsel.

Students should note that, at the pleading stage, plaintiff is required only to plead facts from which it could reasonably be inferred that defendant's negligence caused a loss.

The case is Garnett v. Fox, Horan & Camerini, LLP, NY Slip Op 01589 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is fraudulent inducement and promissory fraud.

Service of process.

Practice point: Service on the corporate defendant was complete when the summons and complaint were personally served on an authorized agent of the Secretary of State, pursuant to Business Corporation Law § 306[b][1] and CPLR 311. 

Students should note that completion of service is not contingent upon the Secretary of State's actually mailing the papers. 

The case is Claudio v. Show Piers on the Hudson, NY Slip Op 01585 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is legal malpractice.

Employment Law.

Practice point: Isolated remarks and occasional episodes of harassment will not support a finding of a hostile or abusive work environment.

Students should note that a claim not raised before an administrative agency may not be raised for the first time in an article 78 proceeding.

The case is Ferrer v. New York State Div. of Human Rights, NY Slip Op 01583 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is service of process.

Administrative Law.

Practice point: Hearsay is admissible in an administrative hearing and, if sufficiently relevant and probative, hearsay alone may constitute the required substantial evidence.

Students should note that statements from witnesses absent from the hearing may form the sole basis for an agency's ultimate determination.

The case is Matter of Heisler v. Scappaticci, NY Slip Op 01472 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue is Employment Law.

Judiciary Law.

Practice point: A non-resident attorney admitted to practice in New York must maintain an office in the State.

Students should note that the failure to maintain the local office requires the striking of any pleading, without prejudice, served by the offending attorney.

The case is Empire Healthchoice Assur., Inc. v. Lester, NY Slip Op 01412 (1st Dept. 2011).

Here is the decision.

Monday's issue is Administrative Law.