Proper service.

Practice point: Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service.

Student note: However, where there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted, and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence.

Case: Goralski v. Nadzan, NY Slip Op 08122 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Respondeat superior.

Whistleblowers.

Practice point: A cause of action based upon Labor Law § 740, known as the whistleblower statute, is available to an employee who discloses or threatens to disclose an employer's activity or practice which (1) is in violation of a law, rule or regulation, and (2) creates a substantial and specific danger to the public health.

Student note: Since plaintiff asserted a § 740 cause of action, she waived the cause of action alleging wrongful termination, inasmuch as it arose out of the same underlying claim of retaliatory action.

Case: Freese v. Willa, NY Slip Op 08118 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Proper service.

Caveat emptor.

Practice point: New York adheres to the doctrine and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm's length, unless there is some conduct which constitutes active concealment.

Student note: A plaintiff seeking to recover damages for active concealment must show that the defendant thwarted the plaintiff's efforts to fulfill the responsibilities imposed by the doctrine.

Case: Margolin v. I M Kapco, Inc., NY Slip Op 07815 (2d Dept. 2011)

Here is the decision.

Tomorrow’s issue: Whistleblowers.

Unlicensed contractors.

Practice point: An unlicensed contractor may neither enforce a home improvement contract against an owner nor seek recovery in quantum meruit.

Student note: Pursuant to CPLR 3015(e), an action to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services will be dismissed if the complaint does not allege compliance with the licensing requirement.

Case: Enko Constr. Corp. v. Aronshtein, NY Slip Op 07805 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Caveat emptor.

Preliminary injunctions.

Practice point: Where the movant does not demonstrate a likelihood of success on the merits, irreparable damage, and a balance of the equities in movant's favor, the motion will not be granted.

Student note: The motion will not be denied just because there are issues of fact, unless they subvert the plaintiff's likelihood of success on the merits to such a degree that it cannot be said that the plaintiff has established a clear right to relief.

Case: Cooper v. Board of White Sands Condominium, NY Slip Op 07799 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Unlicensed contractors.

Veterans Day.

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

To all Veterans, thank you for your service, and to everyone with a family member in service, thank you for your sacrifice.

Monday's issue is preliminary injunctions.

Judgment as a matter of law.

Practice point: A motion for judgment as a matter of law must be made at the close of the opposing party's case or at any time on the basis of admissions, pursuant to CPLR 4401.

Student note: The grant of such a motion prior to the close of the opposing party's case generally will be reversed as premature, even if the opposing party's ultimate success is improbable.

Case: Burbige v. Siben & Ferber, NY Slip Op 07794 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Preliminary injunctions.

Time is of the essence.

Practice point: When the contract states that time is of the essence, the parties are obligated to comply strictly with its terms.

Student note:When time is of the essence, performance on the specified date is a material element of the contract, and failure to perform on that date constitutes a material breach.

Case: Bank of America v. Petit, NY Slip Op 07787 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Judgment as a matter of law.

Election Day.

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

Tomorrow's issue is time is of the essence.

Foreclosures.

Practice point: The holder of a note and mortgage may proceed at law to recover on the note or proceed in equity to foreclose on the mortgage, but must elect only one of these remedies, pursuant to RPAPL 1301.

Student note: RPAPL 1301(1) codifies the equitable principle that once a remedy at law has been resorted to, it must be exercised to exhaustion before a remedy in equity, such as foreclosure, may be sought.

Case: Aurora Loan Servs., LLC v. Lopa, NY Slip Op 07595 (2d Dept. 2011).

Here is the decision.

Wednesday’s issue: Time is of the essence.

Slips and falls.

Practice point: A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of demonstrating, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Student note: Once a defendant has actual or constructive notice of a dangerous condition, the defendant has a reasonable time to undertake remedial actions that are reasonable and appropriate under all of the circumstances.

Case: Alami v. 215 E.68th St., L.P., NY Slip Op 07591 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Foreclosures.