Separation agreements.

Practice point: Agreements which are fair on their face will be enforced according to their terms unless there is proof of fraud, duress, overreaching, or unconscionability.

Student note: Because of the fiduciary relationship between spouses, courts will scrutinize separation agreements more carefully than they will ordinary contracts.

Kabir v. Kabir, NY Slip Op 05672 (2d Dept. 2011).

Here is the decision.

Monday's issue: A school's duty of care.

Attorney malpractice.

Practice point: Ordinarily, privity of contract is necessary to state the cause of action..

Student note: There is a narrow exception where there is fraud, collusion, or malicious acts. 

Ginsburg Dev. Cos., LLC v Carbone, NY Slip Op 05664 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is separation agreements.

Examinations before trial.

Practice point: No appeal as of right lies from an order determining an application to review rulings made at an examination before trial.

Student note: Similarly, the denial of a protective order preventing the further examination of a witness is not appealable as of right, since that is in the nature of an order on application to review objections raised at an examination before trial.

Braverman v. Bendiner & Schlesinger, Inc., NY Slip Op 05645 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is attorney malpractice.

Notice of claim.

Practice point:  The notice is not a condition precedent to a cause of action, asserted pursuant to 42 USC § 1983, which seeks to recover damages premised on violations of federal civil or constitutional rights under color of state law.

Students should note that timely service of the notice is a condition precedent to a lawsuit sounding in tort and commenced against a municipality.

Rowe v. NYCPD, NY Slip Op 05477 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is examinations before trial.

Happy July Fourth.

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

If you are a Veteran, thank you for your service in the name of our freedom, and if you have a family member in service, thank you for your sacrifice.

Tomorrow's issue is notice of claim.

Vehicle and Traffic Law.

Practice point: Pursuant to § 388(1), the motor vehicle's owner is liable for the negligence of anyone who operates the vehicle with the owner's express or implied consent.

Students should note that there is a rebuttable presumption that the operator was driving the vehicle with the owner's consent.

Panteleon v. Amaya, NY Slip Op 05471 (2d Dept. 2011).

Here is the decision.

Tuesday's issue is notice of claim.

Dismissals.

Practice point: Pursuant to CPLR 3211(a)(4), an action might be dismissed based on another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same.

Students should note that the critical element is that both suits arise out of the same subject matter or the same series of alleged wrongs.

DAIJ, Inc. v. Roth, NY Slip Op 05446 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue is Vehicle and Traffic Law.

Reformation of a contract.

Practice point: For a party to be entitled to reformation on the ground of mutual mistake, it must be material, that, is, it must involve a fundamental assumption of the contract.

Students should note that a party need not establish that the parties entered into the contract because of the mistake, only that it vitally affects a fact or facts on the basis of which the parties contracted.

Asset Mgt & Capital Co., Inc. v. Nugent, NY Slip Op 05438 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue is dismissals.

In pari delicto.

Practice point: The doctrine bars a party that has been injured as a result of its own intentional wrongdoing from recovering from another party whose equal or lesser fault contributed to the loss.

Students should note that the doctrine mandates that the courts will not intercede to resolve a dispute between two wrongdoers.

Rosenbach v. Diversified Group, Inc., NY Slip Op 05345 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue is reformation of a contract.

Vacating a default.

Practice point: An affidavit of merit is required in support of the motion, pursuant to CPLR 5015(a)(1).

Students should note that if the motion is denied for want of the affidavit, a second motion cannot be made on the same grounds as the first.

47 Thames Realty, LLC v. Robinson, NY Slip Op 05225 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is in pari delicto.

Account stated.

Practice point: An account stated is an agreement between parties to an account based on prior transactions between them with respect to the correctness of the account items and balance due.

Students should note that the agreement may be express or implied from the retention of an account rendered for an unreasonable period of time without objection.

Fleetwood Agency, Inc. v. Verde Elec. Corp., NY Slip Op 05224 (2d Dept. 2011).

Here is the decision.

Monday's issue is vacating a default.