Contracts.

Practice point: A written agreement is ambiguous if it is reasonably susceptible of more than one interpretation.

Practitioners should note that, in the absence of such ambiguity, parol evidence is inadmissible at trial or on a motion for summary judgment.

Case: RM Realty Holdings Corp. v. Moore, NY Slip Op 05682 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: No appeal lies from a default judgment, or its underlying order.

Practitioners should note that the appeal of an order will be dismissed if the issue raised therein was raised in a prior appeal of another order, and that appeal was dismissed for failure to prosecute.

Case: Salomon v. Angsten, NY Slip Op 05178 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Municipalities Law.

Practice point: To obtain preliminary injunctive relief based on a violation of its zoning ordinances, a town must demonstrate that it is likely to succeed on the merits and that the equities are balanced in its favor.

Practitioners should note that zoning ordinances will be strictly construed against the municipality, and any ambiguity in the language must be resolved in favor of the property owner.

Case: Town of Riverhead v. Gezari, NY Slip Op 05320 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: The right of direct appeal from an intermediate order terminates with the entry of judgment in the action.

Practitioners should note that in a declaratory judgment action the court's judgment must include an appropriate declaration in favor of the prevailing party.

Case: Strathmore Ridge Homeowners Assn., Inc. v. Mendicino, NY Slip Op 05318 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Service of process.

Practice point: Defendant’s detailed affidavit stating that he was home on each of the occasions when the process server purportedly attempted service, pursuant to CPLR 308(2), is sufficient to rebut allegations in the process server's affidavit, and defendant is entitled to a hearing to determine whether personal jurisdiction was acquired over him.

Practitioners should note that defendant’s actual notice of the action will not sustain service or subject a person to the court's jurisdiction when there has not been compliance with prescribed conditions of service.

Case: Saxon Mortgage Services v. Bell, NY Slip Op 05312 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: An at-will employee generally cannot establish reasonable reliance on a prospective employer's representations, an element necessary to recover damages under theories of fraudulent misrepresentation and negligent misrepresentation.

Practitioners should note that a critical element of prima facie tort is that plaintiff suffered a specific and measurable loss, which requires an allegation of special damages.

Case: Epifani v. Johnson, NY Slip Op 05287 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Service of process.

Torts.

Practice point: The awareness of one defect in the area is insufficient, as a matter of law, to constitute notice of another defect which caused the accident where there are factual issues (1) as to the precise location of the defect that caused plaintiff's fall, and (2) whether the defect is designated on the Big Apple Map.

Practitioners should note that plaintiff may amend the pleadings on the eve of trial to allege prior written notice where such amendment does not prejudice or surprise defendant, pursuant to CPLR 3025[b].

Case: Reyes v. City of New York, NY Slip Op 05267 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.