Statute of frauds.

Practice point:  Agreements between persons cohabiting together are not, per se, required to be in writing.

Student note:  Pursuant to CPLR 3211(a)(5), a party may move for dismissal on the ground that the cause of action may not be maintained because of the statute of frauds.

Baron v. Suissa, NY Slip Op 08453 (2d Dep't December 12, 2018)

Here is the decision.

Vacating a default.

Practice point:  Law office failure is not a reasonable excuse for the default where there is a pattern of the attorney's intentional failures.

Spivey v. City of New York, NY Slip Op 08557 (1st Dep't December 13, 2018)

Here is the decision.

Tomorrow's issue:  Statute of frauds.

Improper rent registration.

Practice point:  Pursuant to Rent Stabilization Code § 2528.4, an owner who filed an improper rent registration is barred from collecting rent in excess of the base-date rent. If the increases were otherwise legal, the owner is retroactively relieved of the penalty upon the filing of a proper registration.

Nolte v. Bridgestone Assoc. LLC, NY Slip Op 08571 (1st Dep't December 13, 2018)

Here is the decision.

Monday's issue:  Vacating a default.

Discovery after filing a note of issue.

Practice point:  On a showing of unusual or unanticipated circumstances that developed after the filing of the note of issue, additional discovery may be ordered, pursuant to 22 NYCRR 202.21[d].

Palmiero v 417 E. 9th St. Assoc., LLC, NY Slip Op 08449 (1st Dep't December 11, 2018)

Here is the decision.

Causality in an employment action.

Practice point:  Temporal proximity between a plaintiff's complaints to the employer about racial stereotyping and discrimination and the termination of employment is sufficient to raise an inference of a causal connection between the plaintiff's protected activity and the adverse employment action.

Cook v. EmblenHealth Servs. Co., LLC, NY Slip 08433 (1st Dep't December 11, 2018)

Here is the decision.

CPLR 3216 and 90-day demands.

Practice point:  After having been served with the demand, pursuant to 3216(b), a plaintiff must timely file a note of issue or move to vacate the demand or to extend the 90-day period. Vacatur of a default requires a reasonable excuse and a potentially meritorious cause of action.

Student note:  CPLR 3216  authorizes, but does not require, dismissal of an action based on the plaintiff's unreasonable neglect to proceed.

Angamarca v. 47-51 Bridge St. Prop., LLC, NY Slip 08273 (2d Dep't December 5, 2018)

Here is the decision.

A defense of unconscionability.

Practice point:  The defense requires a showing that the defendant did not have a meaningful choice in entering into the agreement. and that the agreement's terms were unreasonably favorable to the plaintiff.

Cash4Cases, Inc. v. Brunetti, NY Slip Op 08360 (1st Dep't December 6, 2018)

Here is the decision.

The Court of Claims Act.

Practice point:  For purposes of the statute, a claim accrues when damages are reasonably ascertainable.

Student note:  Compliance with the filing deadlines set forth in § 10 is jurisdictional, and the deadlines must be strictly construed.

Mills v. City Univ. of N.Y., NY Slip Op 08355 (1st Dep't December 6, 2018)

Here is the decision.

Easements by grant and prescription.

Practice point:  An easement by grant is construed to give effect to the parties' intent, as manifested by the grant's language. For an easement by prescription, the standard is clear and convincing proof of the adverse, open and notorious, continuous, and uninterrupted use of the property for the prescriptive period.

Student note:  Where the easement provides for the ingress and egress of motor vehicles, it extends to any reasonable use necessary and convenient for the purpose for which it is created.

DiDonato v. Dyckman, NY Slip Op 08113 (2d Dep't November 28, 2018)

Here is the decision.

Equitable remedies.

Practice point:  The court may issue a permanent injunction even if the parties' agreement does not specify it as a remedy.

Student note:  A complete bar to equitable relief requires explicit contractual language, such as a provision that liquidated damages will be the sole and exclusive remedy.

Nelson v. Rosenkranz, NY Slip Op 08177 (1st Dep't November 29, 2018)

Here is the decision.

The right to a trial by jury.

Practice point:  The guarantee to a right to a trial by jury under the Seventh Amendment to the United States Constitution differs from the protections afforded the right to a jury trial in civil cases in New York.

Student note:  The Seventh Amendment is not applicable to cases tried in state courts.

Marko v. Korf, NY Slip Op 08089 (1st Dep't November 27, 2018)

Here is the decision.