Friday, July 31, 2009

Duty of care.

Practice point: Emotional harm is compensable in the absence of physical injury, but only where the injury is a direct result of the alleged breach of duty.

Practitioners should note that the claim must possess some guarantee of genuineness.

Case: Karin K. v. Four Winds Hospital, NY Slip Op 05947 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Real property.

Thursday, July 30, 2009

Defamation.

Practice point: Pursuant to CPLR 3016(a), the complaint must set forth the particular words complained of.

Practitioners should note that compliance with the statute is strictly enforced.

Case: Horbul v. Mercury Ins. Group, NY Slip Op 05947 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Duty of care.

Wednesday, July 29, 2009

Stipulations of settlement.

Practice point: A party will not be relieved from the stipulation absent fraud, mistake, collusion or accident.

Practitioners should note that the party seeking to vacate the stipulation must do so with reasonable promptness under the circumstances.

Case: Charlop v. A.O. Smith Water Prods., NY Slip Op 05911 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Defamation.

Tuesday, July 28, 2009

Damages.

Practice point: Damages for breach of contract are ordinarily ascertained as of the date of the breach, not the date of trial.

Practitioners should note that a contract is not breached until the time set for performance has expired.

Case: Cole v. Macklowe, NY Slip Op 05907 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Stipulations of settlement.

Monday, July 27, 2009

Contracts.

Practice point: A party cannot complain that it was induced to enter into a transaction by misrepresentations if it did not use the ordinary means of discovering the transaction’s true nature.

Practitioners should note that a plaintiff cannot argue that a lease agreement was modified by defendant’s oral representations when the lease expressly provides that its terms may be changed only in writing.

Case: Woods v. 126 Riverside Dr. Corp., NY Slip Op 05634 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Damages.

Friday, July 24, 2009

Landlord-tenant.

Practice point: A landlord may recover possession of a rent-stabilized apartment if it is not occupied by the tenant as the primary residence.

Practitioners should note that “primary residence” will be construed as an ongoing, substantial, physical nexus with the premises for actual living purposes.

Case: 542 E. 14th St. LLC v. Lee, NY Slip Op 05689 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Contracts.

Thursday, July 23, 2009

Motion practice.

Practice point: On a motion for summary judgment in a medical malpractice matter, defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice, or that plaintiff was not injured thereby.

Practitioners should note that, in opposition, plaintiff must submit material or evidentiary facts to rebut defendant's prima facie showing.

Case: Langan v. St. Vincent's Hosp. of N.Y., NY Slip Op 05846 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Landlord-tenant.

Wednesday, July 22, 2009

Spoilation.

Practice point: A party who negligently loses or intentionally destroys key evidence party may be sanctioned, pursuant to CPLR 3126.

Practitioners should note that, in the event of spoliation, the sanction of striking a pleading is appropriate only where the missing evidence deprives the moving party of the ability to establish a claim or a defense.

Case: Holland v. W.M. Realty Mgt., Inc., NY Slip Op 05844 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Tuesday, July 21, 2009

Statute of limitations.

Practice point: The nature of the relief sought in a declaratory judgment action dictates the limitations period.

Practitioners should note that, if plaintiff could have commenced an action against the defendant corporation to recover damages for fraud, the limitations period is six years from the time of the fraud, or two years from the time the fraud was, or could have been, discovered.

Case: Waldman v. 853 St. Nicholas Realty Corp., NY Slip Op 05769 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Spoilation.

Monday, July 20, 2009

Employment Law.

Practice point: To make a prima facie showing of discrimination pursuant to Executive Law § 296(1), plaintiff must present evidence sufficient to raise an inference that he could perform the job with reasonable accommodations.

Practitioners should note that a claim for constructive discharge must establish that defendants' actions resulted in a workplace atmosphere so intolerable as to compel a reasonable person to leave.

Case: Evans v. City of New York, NY Slip Op 05832 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Statute of limitations.

Friday, July 17, 2009

Defamation.

Practice point: There is no cause of action if the words, tested by their effect on the average reader, are not reasonably susceptible of a defamatory meaning.

Practitioners should note that a communication that states or implies that a person is promiscuous is defamatory.

Case: Ava v. NYP Holdings, Inc., NY Slip Op 05611 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Employment Law.

Thursday, July 16, 2009

Defamation.

Practice point: In order to be qualified as an expert, a witness must possess the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion is reliable.

Practitioners should note that evidence that a person has experience servicing and repairing elevators, standing alone, does not establish that the person can render a reliable opinion regarding the cause of the failure of an interlock.

Case: Schechter v. 3320 Holding LLC, NY Slip Op 05684 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Defamation.

Wednesday, July 15, 2009

Torts.

Practice point: The open and obvious nature of an obstacle negates the property owner's duty to warn, but not the duty to ensure that the property is reasonably safe.

Practitioners should note that plaintiff's recognition that she knew the obstacle was there, and had even warned another person to be careful of it, does not preclude a finding of liability.

Case: Lawson v. Riverbay Corp., NY Slip Op 05683 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Expert testimony.

Tuesday, July 14, 2009

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.

Monday, July 13, 2009

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.

Friday, July 10, 2009

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.

Thursday, July 9, 2009

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.

Wednesday, July 8, 2009

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.

Tuesday, July 7, 2009

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.

Monday, July 6, 2009

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.

Friday, July 3, 2009

Happy July Fourth.

Today is a court holiday and so there is no post.

Thanks to the men and women whose service has kept us free, and enjoy a safe and happy holiday weekend.

Monday's issue: Torts.

Thursday, July 2, 2009

Vacatur.

Practice point: Both CPLR 317 and 5015(a)(1) allow a defendant to move to vacate a default judgment, but the former is available only to a defendant who was served by other than personal delivery.

Practitioners should note that if the defaulting defendant asserts that the court lacked personal jurisdiction, the defendant should seek dismissal of the action under CPLR 5015(a)(4), a motion that has no time-limit.

Case: Caba v. Rai, NY Slip Op 05252 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Torts.

Wednesday, July 1, 2009

Marital property.

Practice point: Subject to equitable distribution, it includes property acquired by either spouse during the marriage regardless of the form in which title is held, pursuant to Domestic Relations Law § 236[B][1][c].

Practitioners should note that, even if one party has separate property, any appreciation in value of that property may be subject to distribution if there is a nexus between the titled spouse's efforts and the increase in value and if those efforts were aided or facilitated by the nontitled spouse.

Case: Wohl v. Wohl, NY Slip Op 04973 (1st Dept 2009)

The opinion is here.

Tomorrow’s issue: Vacatur.