Friday, February 26, 2010

Dog bites.

Practice point: There is strict liability for harm caused by a dog whose owner knew or should have known of the animal's vicious propensities.

Students should note that the owner will establish prima facie a lack of knowledge by demonstrating the dog had never before been aggressive, growled, bared its teeth or bitten anyone.

Case: Levine v. Kadison, NY Slip Op 00819 (2d Dept. 2010)

The opinion is here.

Monday's issue: Motion practice.

Thursday, February 25, 2010

Employment Law.

Practice point: An employer can unilaterally change an at-will employee's draw against commissions going forward.

Students should note that by continuing the employment the employee accepts the new compensation terms, even without signing the formal notice of them.

Case: Kronick v. L.P. Thebault Co., Inc., NY Slip Op 00816 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Dog bites.

Wednesday, February 24, 2010

Landlord-Tenant Law.

Practice point: When a tenant does not timely request a temporary restraining order, a court cannot grant a Yellowstone injunction that would toll the running of the cure period.

Students should note that a court cannot reinstate a lease after the lapse of time specified to cure a default.

Case: Korova Milk Bar of White Plains, Inc. v. PRE Props., LLC, NY Slip Op 00815 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Employment Law.

Tuesday, February 23, 2010

Torts.

Practice point: Awareness of a compressor's internal leak does not raise an issue of fact as to defendant's actual or constructive notice of oil on the floor.

Students should note that, absent a maintenance contract, an independent contractor has no duty to install safety devices or to inspect or warn of alleged defects.

Case: Bevilacqua v. Bloomberg, L.P., NY Slip Op 00728 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Landlord-Tenant Law.

Monday, February 22, 2010

Motion practice.

Practice point: Recission is appropriate when defendant's fraud caused a significant injury and plaintiff has no adequate remedy at law.

Students should note that an action is not time-barred when it was asserted as a counterclaim in a prior proceeding and consolidated with the instant action, pursuant to CPLR 203(d).

Case: Shomron v. Griffin, NY Slip Op 00723 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Torts.

Friday, February 19, 2010

Property.

Practice point: An owner of land abutting a highway or street owns easements of light, air, and access, regardless of ownership of the highway or the street.

Practitioners should note that the landowner cannot prevent parking on the adjoining street unless it unreasonably interferes with access.

Case: Bryer v. Terleph, NY Slip Op 00642 (2d Dept. 2010)

The opinion is here.

Monday’s issue: Motion practice.

Thursday, February 18, 2010

Evidence.

Practice point: Sanctions are available when a party destroys evidence that is essential to the opponent's claim or defense.

Practitioners should note that sanctions may result even if the destruction was not willful or contumacious.

Case: Awon v. Harran Transp. Co., Inc., NY Slip Op 00638 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Property.

Wednesday, February 17, 2010

Torts.

Practice point: Where plaintiff is a worker whose claim sounds in premises liability, the landowner's duty is to provide a safe place to work.

Practitioners should note that there is no duty to guard against hazards inherent in the work or caused by a condition the worker is repairing, or hazards that the worker can readily see.

Case: Schindler v. Ahearn, NY Slip Op 00501 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Evidence.

Tuesday, February 16, 2010

Motion practice.

Practice point: A party seeking to vacate an order entered upon a default must demonstrate a reasonable excuse and a meritorious cause of action or defense.

Practitioners should note that the determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion.

Case: Rivera v. Komor, NY Slip Op 00497 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Torts.

Monday, February 15, 2010

Court holiday.

The courts are closed again today, and so the next post will be tomorrow.

Tomorrow's issue: Motion practice.

Friday, February 12, 2010

Court holiday.

Today and Monday are court holidays, and so the next post will be on Tuesday, February 16.

Tuesday's issue: Motion practice.

Thursday, February 11, 2010

Motion practice.

Practice point: Where a party makes a timely summary judgment motion, the court may consider an untimely motion, provided it is based on nearly identical grounds.

Practitioners should note that, in deciding the timely motion, the court may search the record and award summary judgment to a nonmoving party.

Case: Lennard v. Khan, NY Slip Op 00482 (2d Dept. 2010)

The opinion is here.

Tuesday’s issue: Motion practice.

Motion practice.

Practice point: Where a party makes a timely summary judgment motion, the court may consider an untimely motion, provided it is based on nearly identical grounds.

Practitioners should note that, in deciding the timely motion, the court may search the record and award summary judgment to a nonmoving party.

Case: Lennard v. Khan, NY Slip Op 00482 (2d Dept. 2010)

The opinion is here.

Tuesday’s issue: Motion practice.

Wednesday, February 10, 2010

Contracts.

Practice point: Reformation restates an agreement's intended terms when the writing is at variance with the intent of the parties.

Practitioners should note that the reformation's proponent must establish cause by clear and convincing evidence.

Case: Kaliontzakis v. Papadakos, NY Slip Op 00478 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Motion practice.

Tuesday, February 9, 2010

Employment Law.

Practice point: A cause of action sounding in negligent hiring or supervision requires a showing that the employer knew or should have known of the employee's propensity for the injury-causing conduct.

Practitioners should note that there is no common-law duty regarding hiring procedures unless the employer knows something that a reasonably prudent person would investigate.

Case: Jackson v. New York Univ. Downtown Hosp., NY Slip Op 00476 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Contracts.

Monday, February 8, 2010

Landlord-Tenant Law.

Practice point: While landlords are not insurers of their tenants’ safety, they have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including criminal conduct by third-parties.

Practitioners should note that third-party criminal conduct is foreseeable as a matter of law if it is reasonably predictable based on the prior occurrence of the same or similar activity at a sufficiently proximate location.

Case: Beato v. Cosmopolitan Assoc., LLC, NY Slip Op 00458 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Employment Law.

Friday, February 5, 2010

Motion practice.

Practice point: A court may stay or dismiss an action that, although jurisdictionally sound, would be better adjudicated elsewhere.

Practitioners should note that relevant factors are the burden on New York courts; potential hardship to the defendant; the availability of another forum; the parties' residency; the forum in which the cause of action arose; and the extent to which plaintiff's interests may be properly served in New York.

Case: Rabinowitz v. Devereux Conn. Glenholme, NY Slip Op 00378 (1st Dept. 2010)

The opinion is here.

Monday’s issue: Landlord-Tenant Law.

Thursday, February 4, 2010

Torts.

Practice point: A claim against an employer based on an employee's actions committed within the scope of employment sounds in respondeat superior, not negligent hiring or supervision.

Practitioners should note that a defendant cannot argue assumption of the risk if its papers do not establish that the alleged injury was an inherent risk of the sport.

Case: Segal v. St. John’s University, NY Slip Op 00243 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Motion practice.

Wednesday, February 3, 2010

Fraud.

Practice point: To make out a prima facie case, the complaint must allege a misrepresentation of material fact, scienter, reliance and injury.

Practitioners should note that CPLR 3016(b) further requires that the pleadings must allege the circumstances in detail.

Case: Morales v. AMS Mtge. Servs., Inc., NY Slip Op 00234 (2d Dept 2010)

The opinion is here.

Tomorrow’s issue: Torts.

Tuesday, February 2, 2010

Privileged communications.

Practice point: In asserting that attorney-client emails are privileged, the attorney must establish that they are of a legal, and not a business, nature.

Practitioners should note that the claim, if found to be without merit in law, is sanctionable.

Case: Delta Fin. Corp. v. Morrison, NY Slip Op 00216 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Fraud.

Monday, February 1, 2010

Attorney-client relationships.

Practice point: There is a fiduciary relationship between an employer-client and its in-house attorney who is at-will employee.

Practitioners should note that the duty to maintain a client’s confidences continues after representation ends.

Case: Keller v. Loews Corp., NY Slip Op 00203 (1st Dept. 2010)

The opinion is here.

Tomorrow’s issue: Privileged communications.