A dismissed claim of libel per se.

Practice point:  At issue are the defendant's statements to former colleagues at the law firm which had terminated him. The defendant's statement that the plaintiff, who is the firm's principal, is "really nothing more than a common criminal" is a nonactionable statement of opinion. The statement has an imprecise meaning, and it cannot be proven true or false. In context, no reasonable reader would understand the statement as an accusation that the plaintiff had ever been charged with, or convicted of, a crime.

Caradli v. Slater, NY Slip Op 08544 (1st Dep't December 13, 2018)

Here is the decision.

Opposing summary judgment.

Practice point: The opposing party need only raise an issue of fact, and, as to that fact, the court may not apply the burden of proof that will be applicable at trial.

Ostad v. Nehmadi, NY Slip Op 08563 (1st Dep't December 13, 2018)

Here is the decision.

Option contracts.

Practice point:  An option contract is an agreement, for consideration, to hold open an offer, with the right to purchase at a later date.  If the agreement sets no time limit for performance, the court will decide on a reasonable time, considering factors such as the agreement's nature and object; the parties' previous dealings and their experience; whether there is good faith; the possibility of prejudice or hardship to either party; and, if specified, the number of days provided for performance.

Student note:  On a motion to dismiss for failure to state a cause of action, a court may reach the merits of a properly pleaded claim for a declaratory judgment where there are no questions of fact.

Breslin v. Frankel, NY Slip Op 08456 (2d Dep't December 12, 2018)

Here is the decision.

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.