Court holiday.

The courts are closed today in honor of Labor Day, and so there is no post here on NEW YORK LAW NOTES.

Tomorrow's issue: Res judicata.

Legal malpractice.

Practice point: The fact that defendant-attorney received a telephone call from plaintiffs' new counsel, and provided the requested information, did not toll the running of the statute of limitations until that date.

Student note: A cause of action may sound in fraud if it is based on tortious conduct independent of the alleged malpractice, here, an alleged misrepresentation as to defendant’s eligibility to practice in Florida.

Case: Rupolo v. Fish, NY Slip Op 06343 (2d Dept. 2011).

Here is the decision.

Tuesday’s issue: Res judicata.

Attorney affirmations.

Practice point: An attorney is entitled to serve and file an affirmation, instead of an affidavit, pursuant to CPLR 2106.

Student note: The affirmation is without effect, however, if the attorney is also a party.

Case: John Harris, P.C. v. Krauss, NY Slip Op 06297 (1st Dept. 2011).

Here is the decision.

Tomorrow: Legal malpractice.

Striking a pleading.

Practice point: On a motion to strike a pleading, pursuant to CPLR 3126, for failure to comply with a discovery order, movant must show that the non-disclosure was willful, contumacious or in bad faith.

Student note: Willful or contumacious behavior is inferred from the non-compliance with the court order, absent a sufficient excuse.

Case: Henderson-Jones v. New York, NY Slip Op 06327 (1st Dept. 2011).

Here is the decision.

Tomorrow: Attorney affirmations.

Employment discrimination.

Practice point: Pursuant to Human Rights Law (Executive Law article 15), persons aggrieved by certain forms of unlawful discrimination (see Executive Law §§ 296, 296-a, 296-b) may seek relief in an administrative proceeding, or in a court action.

Student note: Pursuant to Executive Law § 297(5), if relief is sought through an administrative proceeding, the complaint must be filed within one year after the alleged discriminatory practice.

Case: Matter of Murphy v. Kirkland, NY Slip Op06271 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Striking a pleading.

Attorney discipline.

Practice point: The federal felony of fraud by wire, in violation of 18 USC § 1343, has been held to be essentially similar to the New York felonies of grand larceny in the second degree, under Penal Law § 155.40, and scheme to defraud in the first degree, under Penal Law § 190.65.

Student note: By virtue of a felony conviction, the respondent was automatically disbarred and ceased to be an attorney, pursuant to Judiciary Law § 90(4)(a).

Case: Matter of Caputo, NY Slip Op 06262 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Employment discrimination.

Easements by prescription.

Practice point: An easement by prescription is generally demonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use of the property for the required period.

Student note: The standard of proof is clear and convincing.

Case: Vitiello v. Merwin, NY Slip Op 06260 (2d Dept. 2011).

Here is the decision.

Monday’s issue:  Attorney discipline

Building permits.

Practice point: A permit which is issued in contravention of zoning laws is invalid.

Student note:  Where the permit is issued either because of the applicant’s misrepresentation or the municipality’s mistake, it can be revoked.

Case: Wappingers Falls v. Tomlins, NY Slip Op 06259 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue:  Easements by prescription.

Settlement agreements.

Practice point: The agreement does not terminate the action unless there is an express stipulation of discontinuance, or an entry of judgment in accordance with the settlement terms.

Student note: Absent termination, the court retains its supervisory power over the action and may lend aid to a party who moves for enforcement.

Case: Palmieri v. Town of Babylon, NY Slip 06254 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Building permits.

Venue.

Practice point: 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.

Student note: Since defendant did not timely serve, he was not entitled to the change of venue as of right.

Case: Brash v. Richard, NY Slip Op 06210 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Settlement agreements.

Inter vivos gifts.

Practice point: The donor must intend to make an irrevocable present transfer of ownership, and there must be delivery and acceptance.

Student note: If the intention is to make a testamentary disposition, the gift is invalid unless made by will.

Case: Ross v. Ross Metals Corp., NY Slip Op 06224 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Venue.