Restoring a case marked off the trial calendar.

Practice point: A case in the Supreme Court marked off or struck from the trial calendar and not restored within one year thereafter is deemed abandoned and will be dismissed for neglect to prosecute, pursuant to CPLR 3404.

Student note: A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked off must demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant All four components of the test must be satisfied before the dismissal will be vacated and the action restored.

Case: Agli v. O’Connor, NY Slip Op 01417 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Usury as an affirmative defense.

Pleading with particularity.

Practice point: In an action resulting from the performing of labor or services, CPLR 3016(f) permits a plaintiff to set forth and number in the verified complaint the items of the claim and the reasonable value or agreed price of each. When the plaintiff properly complies with the statutory provisions, the defendant may not generally deny the allegations of the complaint but must specifically dispute the items on the plaintiff's list.

Student note: To meet the requirements of CPLR 3016(f), the complaint must contain a listing of the goods or services provided, with enough detail that it may readily be examined and its correctness tested entry by entry.

Case: Raytone Plumbing Specialties, Inc. v. Sano Constr. Corp., NY Slip Op 01442 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Restoring a case marked off the trial calendar.

Depositions.

Practice point: Depositions of parties to an action are generally held in the county where the action is pending.

Student note:  If a party demonstrates that conducting his deposition in that county would cause undue hardship, the Supreme Court, in its exercise of discretion, can order the deposition to be held elsewhere.

Case: Weinstein v. Gindi, NY Slip Op 01175 (1st Dept. 2012).

Here is the decision. 

Monday’s issue: Pleading with particularity.

Law of the case.

Practice point: An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court, and forecloses a re-examination of the question, absent a showing of subsequent evidence or a change of law.

Student note: Under the doctrine, parties are precluded from relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue.

Case: Carmona v. Mathisson, NY Slip Op 01105 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue:  Depositions.

Tort liability to a third party.

Practice point: A contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.

Student note: There is an exception where a contractor who undertakes to perform services pursuant to a contract negligently creates or exacerbates a dangerous condition by launching its own force or instrument of harm.

Case: Kramer v. Cury, NY Slip Op 00913 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Law of the case..

Labor Law.

Practice point: While § 240(1) is not limited to work performed on actual construction sites, the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.

Student note: Within the meaning of § 240(1), ‘altering’ requires making a significant physical change to the configuration or composition of the building or structure.

Case: Panico v. Advanstar Communications, Inc., NY Slip Op 00944 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue:  Tort liability to a third party.

Court holiday.

The courts are closed today to mark Washington’s Birthday.

Tomorrow’s issue: Labor Law.

Affirmative acts of negligence.

Practice point: A defendant may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk.

Student note: Speculation and surmise are insufficient to defeat a motion for summary judgment.

Case: Jeansimon v. Lumsden, NY Slip Op 00931 (2d Dept. 2012).

Here is the decision. 

Tuesday’s issue:  Labor Law.

Disinternment.

Practice point: Pursuant to N-PCL 1510(e), the consent of the cemetery corporation, the owners of the lot, and a decedent's surviving spouse, adult children, and parents is required before a body may be disinterred.

Student note: In the absence of consent, a court may grant a motion to disinter upon a showing of good and substantial reasons. The paramount factor a court must consider is the known desires of the decedent, but the court must also consider the desires of the decedent's next of kin.

Case: Brandenburg v. St. Michael’s Cemetery, NY Slip Op 00923 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Affirmative acts of negligence.

Intervention.

Practice point: CPLR 1013 provides that a court has discretion to permit a person to intervene when the person's claim or defense and the main action have a common question of law or fact.

Student note: In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action, or prejudice the substantial rights of any party.

Case: American Home Mtge. Servicing, Inc. v. Sharrocks, NY Slip Op 00918 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Disinternment.

Conversion.

Practice point: To establish the cause of action, a plaintiff must show (1) legal ownership or an immediate superior right of possession to a specific identifiable thing, and (2) that the defendant exercised an unauthorized dominion over the thing to the exclusion of the plaintiff's rights.

Student note: Tangible personal property or specific money must be involved.

Case: National Ctr. For Crisis Mgt., Inc. v. Lerner, NY Slip Op 00758 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Intervention.