Settlements.

Practice point: A stipulation of settlement is a contract, enforceable according to its terms.

Students should note that, when a court enforces the stipulation, it must effectuate the parties' intent. As with any contract, where the terms are unambiguous, plain meaning controls.

The case is Alshawhati v. Zandani, NY Slip Op 01777 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is Family Law.

Venue.

Practice point: The motion to change venue was granted when none of the parties resided in the county at the time the action was commenced, pursuant to CPLR 503[a], and the summons did not state the basis for placing venue in the county.

Students should note that a demand to change venue based on the designation of an improper county, pursuant to CPLR 510[1], must be served with the answer or before the answer is served, pursuant to CPLR 511[a].

The case is Accardi v. Kaufmann, NY Slip Op 01775 (2d Dept. 2011).

Here is the decision.

Tomorrows issue is settlements.

Labor Law.

Practice point: Pursuant to § 241(6), property owners and contractors engaged in construction, excavation, and demolition must ensure that the work is conducted so as to provide reasonable and adequate protection and safety to persons employed therein.

Students should note that the statutory obligation is non-delegable.

The case is Reyes v. Arco Wentworth Mgt. Corp., NY Slip Op 01988 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue is venue.

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.