Tuesday, June 30, 2009

Defective products.

Practice point: The distributor is strictly liable even if he has merely taken an order and directed the manufacturer to ship the product directly to the purchaser, and has never inspected, controlled, installed or serviced the product.

Practitioners should note that there is strict liability even if the product’s sale were incidental to the distributor’s installation of it.

Case: Fernandez v. Riverdale Terrace, NY Slip Op 05167 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Marital property.

Monday, June 29, 2009

Jurisdiction.

Practice point: Jurisdiction will be obtained over a corporate defendant by service of process on the Secretary of State, regardless of whether the process ever actually reached defendant.

Practitioners should note that while the failure to keep a current address with the Secretary of State, pursuant to Business Corporation Law § 306(b)(1), is generally not a reasonable excuse for default under CPLR 5015(a)(1), relief from a default may be granted pursuant to CPLR 317 where the court finds that a defendant did not personally receive notice of the summons in time to defend and has a meritorious defense.

Case: Shanker v. 119 E. 30th, Ltd., NY Slip Op 05165 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Defective products.

Friday, June 26, 2009

Service of process.

Practice point: Pursuant to CPLR 311(a)(1), service upon a corporation may be made by delivering the summons to an officer, director, managing agent, general agent, cashier, or assistant cashier.

Practitioners should note that, in addition, service may be made upon someone whom the corporation cloaks with authority.

Case: Aguilera v. Pistilli Constr. & Dev. Corp., NY Slip Op 04844 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Jurisdiction.

There is another instructive case here.

Thursday, June 25, 2009

Municipalities Law.

Practice point: A § 50-h examination is a condition precedent to bringing an action against a municipality, and noncompliance is ground for dismissal.

Practitioners should note that failure to submit to the examination may be excused in exceptional circumstances, such as extreme physical or psychological incapacity.

Case: Steenbuck v. Sklarow, NY Slip 04890 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Service of process.

There is another instructive case here.

Wednesday, June 24, 2009

Motion practice.

Practice point: If service of process has been improper, any resulting default judgment is a nullity.

Practitioners should that that the fact that defendant had actual notice of the suit, and no meritorious defense, does not require a different result.

Case: Ruffin v. Lion Corp., NY Slip Op 04883 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

There is another instructive case here.

Tuesday, June 23, 2009

Legal malpractice.

Practice point: The absence of proximate cause requires dismissal of a legal malpractice action regardless of the attorney’s negligence.

Practitioners should note that an attorney may not recover fees for legal services performed in a negligent manner even where that negligence is not a proximate cause of client's injury.

Case: Kluczka v. Lecci, NY Slip Op 04867 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

Monday, June 22, 2009

Labor Law.

Practice point: For the purposes of § 240(1) liability, a fire escape could be the functional equivalent of a scaffold.

Practitioners should note that the fact that the fire escape is a permanent structure is not determinative.

Case: Gomez v. City of New York, NY Slip Op 04759 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

There is another instructive case here.

Friday, June 19, 2009

Long-arm jurisdiction.

Practice point: Defendant's negotiating the potential purchase of an automobile by email and telephone, which was initiated by plaintiff after seeing the car on defendant's website, does not constitute transacting business in New York.

Practitioners should note that, since the car was to be picked up in Texas, there was no contract to supply goods or services in New York. Defendant's website, which described available cars and featured an email link but did not let a customer purchase a car, was not a projection of defendant into New York.

Case: Arouh v. Budget Leasing, Inc., NY Slip Op 04751 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

There is another instructive case here.

Thursday, June 18, 2009

Discovery.

Practice point: Full disclosure is required of everything material and necessary to the defense of an action, pursuant to CPLR 3101[a], which means that there must be disclosure of any facts bearing on the controversy.

Practitioners should note that, in a defamation action, defendant is entitled to discovery to establish the defense of truth to plaintiff's claims, and to defend against plaintiff's assertion of damage to his reputation.

Case: Rivera v. NYP Holdings, Inc., NY Slip 04706 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Long-arm jurisdiction.

There is another instructive case here.

Wednesday, June 17, 2009

Attorney-client relationships.

Practice point: While a plaintiff's perception, standing alone, does not create an attorney-client relationship, a formal retainer agreement is not imperative.

Practitioners should note that, in order to establish the relationship, there must be an explicit undertaking to perform a specific task.

Case: Terio v. Spodek, NY Slip 04412 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Discovery.

There is another instructive case here.

Tuesday, June 16, 2009

Motion practice.

Practice point: To avoid dismissal for failure to timely serve a complaint which has been demanded, pursuant to CPLR 3012(b), plaintiff must demonstrate a reasonable excuse for the delay and a meritorious cause of action.

Practitioners should note that until the attorney of record withdraws or is fired, as prescribed by CPLR 321, the attorney’s authority for the client as to adverse parties continues unabated.

Case: Splinters, Inc. v. Greenfield, NY Slip Op 04411 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Attorney-client relationships.

There is another instructive case here.

Monday, June 15, 2009

Trespass.

Practice point: Entering onto another’s property, without permission, even if innocently or by mistake, is a trespass.

Practitioners should note that nominal damages are presumed even where the property owner has suffered no actual injury.

Case: Hill v. Raziano, NY Slip Op 04382 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

Friday, June 12, 2009

Motion practice.

Practice point: In order to vacate a default in opposing plaintiff's motion to strike the answer, pursuant to CPLR 3126, defendant must demonstrate a reasonable excuse for the default and a meritorious defense to both the motion and the action, pursuant to CPLR 5015[a][1].

Practitioners should note that the mere denial of receipt is insufficient to rebut the proof that the motions papers were properly mailed, and the presumption of receipt.

Case: Caprio v. 1025 Manhattan Ave. Corp., NY Slip Op 04367 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Trespass.

There is another instructive case here.

Thursday, June 11, 2009

Motion practice.

Practice point: An order striking a note of issue pending the completion of discovery is not the equivalent of an order marking the action off the calendar pursuant to CPLR 3404.

Practitioners should note that the action will be restored to the trial calendar when plaintiff files a new note of issue, which does not require the Court’s prior permission.

Case: Lane v. New York City Housing Authority, NY Slip Op 04203 (2d Dept. 2009).

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

Wednesday, June 10, 2009

Landlord-Tenant Law.

Practice point: Where a lease allows a landlord to recover attorneys’ fees if a tenant defaults or is evicted, the claim for the fee must be asserted in the summary proceeding.

Practitioners should note that a separate, plenary action to recover attorneys’ fees is prohibited as the splitting of the cause of action.

Case: Landmark Properties v. Olivo, NY Slip Op 04202 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

Tuesday, June 9, 2009

Legal malpractice.

Practice point: It is sufficient to allege that defendant, after being retained in a matter of wrongful termination as a result of a medical condition, advised plaintiff not to file a disability claim, and benefits were denied for lack of a timely filing.

Practitioners should note that the action is not barred when the underlying matter was settled, without a judgment.

Case: Douglas v. Dashevsky, NY Slip Op 04187 (2d Dept. 2009).

The opinion is here.

Tomorrow’s issue: Landlord-Tenant Law.

There is another instructive case here.

Monday, June 8, 2009

Damages.

Practice point: For permanent injury to real property, the standard is the lesser of the decline in market value and the cost of restoration.

Practitioners should note that defendant must prove that a lesser amount than plaintiff claims will be sufficient compensation.

Case: Dilapi v. Empire Drilling & Blasting, Inc., NY Slip Op 04186 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

There is another instructive case here.

Friday, June 5, 2009

Judgment as a matter of law.

Practice point: The motion will be granted, pursuant to CPLR 4401, only when the trial court determines that, based on the evidence presented, there is no rational process by which the jury could find in favor of the nonmoving party.

Practitioners should note that the court must afford the nonmovant every inference which may properly be drawn from the facts presented, and the facts must be considered most favorably to the nonmovant.

Case: DeVito v. City of New York, NY Slip Op 04184 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Damages.

You will find another instructive case here.

Thursday, June 4, 2009

Motion practice.

Practice point: The Court may consider an untimely summary judgment motion where a timely motion was made on nearly identical grounds.

Practitioners should note that a Court is authorized to search the record and award summary judgment to a nonmoving party.

Case: Perfito v. Einhorn, NY Slip Op 04038 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Judgment as a matter of law.

You will find another instructive case here.

Wednesday, June 3, 2009

Notice of Claim.

Practice point: The notice is sufficient if the public entity is able to locate the place and fix the time of the accident, and to understand its nature.

Practitioners should note that, on a motion to dismiss for insufficiency, a court may consider the testimony provided during the § 50-h hearing, and any other evidence before it.

Case: Parker-Cherry v. New York City Hous. Auth., NY Slip Op 04037 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

You will find another instructive case here.

Tuesday, June 2, 2009

Appellate practice.

Practice point: The Appellate Division generally will not consider, on a subsequent appeal, an issue from an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so.

Practitioners should note that the better practice is to withdraw the prior appeal, and not abandon it.

Case: Maksuta v. Galiatsatos, NY Slip Op 04033 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Notice of Claim.

You will find another instructive case here.

Monday, June 1, 2009

Partnership Law.

Practice point: A former law partner has no standing to seek an accounting when the claim to money owed would have accrued prior to his a commencing proceeding in which he received a discharge in bankruptcy.

Practitioners should note that an accounting may not be sought to obtain information about the funds of the partnership's clients.

Case: Goldman v. Rio, NY Slip Op 04027 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Appellate practice.

You will find another instructive case here.