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.

Employment discrimination.

Practice point: Pursuant to Human Rights Law (Executive Law article 15), persons aggrieved by certain forms of unlawful discrimination (see Executive Law §§ 296, 296-a, 296-b) may seek relief in an administrative proceeding, or in a court action.

Student note: Pursuant to Executive Law § 297(5), if relief is sought through an administrative proceeding, the complaint must be filed within one year after the alleged discriminatory practice.

Case: Matter of Murphy v. Kirkland, NY Slip Op06271 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Striking a pleading.

Attorney discipline.

Practice point: The federal felony of fraud by wire, in violation of 18 USC § 1343, has been held to be essentially similar to the New York felonies of grand larceny in the second degree, under Penal Law § 155.40, and scheme to defraud in the first degree, under Penal Law § 190.65.

Student note: By virtue of a felony conviction, the respondent was automatically disbarred and ceased to be an attorney, pursuant to Judiciary Law § 90(4)(a).

Case: Matter of Caputo, NY Slip Op 06262 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Employment discrimination.

Easements by prescription.

Practice point: An easement by prescription is generally demonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use of the property for the required period.

Student note: The standard of proof is clear and convincing.

Case: Vitiello v. Merwin, NY Slip Op 06260 (2d Dept. 2011).

Here is the decision.

Monday’s issue:  Attorney discipline

Building permits.

Practice point: A permit which is issued in contravention of zoning laws is invalid.

Student note:  Where the permit is issued either because of the applicant’s misrepresentation or the municipality’s mistake, it can be revoked.

Case: Wappingers Falls v. Tomlins, NY Slip Op 06259 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue:  Easements by prescription.

Settlement agreements.

Practice point: The agreement does not terminate the action unless there is an express stipulation of discontinuance, or an entry of judgment in accordance with the settlement terms.

Student note: Absent termination, the court retains its supervisory power over the action and may lend aid to a party who moves for enforcement.

Case: Palmieri v. Town of Babylon, NY Slip 06254 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Building permits.

Venue.

Practice point: A demand to change venue based on the designation of an improper county, pursuant to CPLR 510[1], must be served with the answer or before the answer is served.

Student note: Since defendant did not timely serve, he was not entitled to the change of venue as of right.

Case: Brash v. Richard, NY Slip Op 06210 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Settlement agreements.

Inter vivos gifts.

Practice point: The donor must intend to make an irrevocable present transfer of ownership, and there must be delivery and acceptance.

Student note: If the intention is to make a testamentary disposition, the gift is invalid unless made by will.

Case: Ross v. Ross Metals Corp., NY Slip Op 06224 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Venue.

Notice of claim.

Practice point: Service of the notice within 90 of the claim's accrual is a condition precedent to commencing a suit against a school district.

Student note: Plaintiff may not plead a theory of liability that was not included in the notice.

Case: O'Connor v. Huntington School District, NY Slip Op 06222 (2d Dept. 2011).

Here is the decision.

Listen here.

Monday's issue: Inter vivos gifts.

Third-party conduct.

Practice point: As a general rule, a defendant has no duty to control the conduct of third-parties.

Student note: There is no bright-line rule in New York as to whether a mental health care provider treating a patient on a voluntary basis owes a duty of care to the general public.

Case: Fox v. Marshall, NY Slip Op 06214 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Notice of claim.

Disbarment.

Practice point: A federal felony conviction will trigger automatic disbarment if there is an equivalent felony under New York law.

Student note: The standard is the essential similarity of the elements of the felonies.

Case: Matter of Starr, NY Slip Op 06193 (1st Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Third-party conduct.