Article 78 proceedings.

Practice point: Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and only when a court acts without jurisdiction or in excess of its authorized powers.

Student note: The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when there is a clear legal right to the relief sought.

Case: Matter of Walter v. Neary, NY Sip Op 06386 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue:  90-day notices.

Attorney discipline.

Practice point: Intentional conversion of escrow funds requires disbarment, absent extremely unusual mitigating circumstances.

Student note: The fact that the attorney intended to repay, or actually repays, converted funds does not negate a finding of venal intent.

Case: Matter of Squitieri, NY Slip Op 06418 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Article 78 proceedings.

Assumption of the risk.

Practice point: The dangers associated with players swinging bats during warm-ups are inherent in the sports of baseball and softball.

Student note: If the accident occurs so suddenly that even the most intense supervision could not have prevented it, lack of supervision cannot be the proximate cause of the injury.

Case: Navarro v. City of New York, NY Slip Op 06412 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue:  Attorney discipline.

Unconscionable contracts.

Practice point: A contract is unconscionable if there is an absence of meaningful choice on the part of one of the parties, together with terms which are unreasonably favorable to the other party.

Student Note: If there is a question as to a contract’s unconscionability, there must be a hearing regarding the circumstances of the contract’s signing, and the setting, purpose and effect of the disputed terms.

Case: Simar Holding Corp. v. GSC, NY Slip Op 06346 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Assumption of the risk.

Judgment liens.

Practice point: Judgment liens and other secured interests ordinarily survive bankruptcy.

Student note:  A creditor need not object to the debtor's discharge in bankruptcy in order to preserve its lien, since the discharge does not affect the lien.

Nelson, L.P. v. Jannace, NY Slip Op 06373 (2d Dept. 2011).

Here is the decision.

Tomorrow: Unconscionable contracts.

Workers' Compensation Law.

Practice point: The statute provides the exclusive remedy for an employee seeking damages for unintentional injuries incurred in the course of employment.

Student note: An intentional tort may give rise to a cause of action outside the ambit of the statute, but the complaint must allege an employer’s deliberate act directed at causing harm to this particular plaintiff.

Kruger v. EMFT, LLC, NY Slip Op 06369 (2d Dept. 2011).

Here is the decision.

Tomorrow: Judgment liens.

Res judicata.

Practice point: The doctrine gives binding effect to the judgment of a court of competent jurisdiction, and prevents the parties, and those in privity with them, from relitigating any questions that were necessarily decided therein.

Student note: To establish privity, the party raising a res judicata defense must demonstrate a connection between the party to be precluded and a party to the prior action, such that the nonparty's interests can be said to have been previously represented.

Case: Farren v. Lisogorsky, NY Slip Op 06366 (2d Dept. 2011).

Here is the decision.

Tomorrow: Workers’ Compensation Law.

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.