Wednesday, March 31, 2010

Municipalities Law.

Practice point: Generally, the municipality is liabile for injuries resulting from negligent maintenance of a public sidewalk, or from a defective condition on the sidewalk.

Students should note that there is an exception where defendant created the defect.

Case: Elkman v. Consolidated Edison of N.Y., NY Slip Op 02088 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Tuesday, March 30, 2010

Motion practice.

Practice point: Plaintiff's failure to plead that the fee dispute was not covered by the Fee Dispute Resolution Program, pursuant to 22 NYCRR 136.1[b][2],[6], is not a jurisdictional defect precluding service of an amended complaint.

Students should note that an amended complaint supersedes the original, which is without legal effect.

Case: Nimkoff Rosenfeld & Schechter, LLP v. O'Flaherty, NY Slip Op 02067 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Municipalities Law.

Monday, March 29, 2010

Torts.

Practice point: A complaint sounding in defamation must allege the spoken or published words.

Students should note that the words need not be set in quotation marks.

Case: Moreira-Brown v. City of New York, NY Slip Op 02063 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Friday, March 26, 2010

Motion practice.

Practice point: When served with a 90-day demand, plaintiff must seek an extension to comply, move to vacate the notice, or file a note of issue.

Students should note that law office failure is not a reasonable excuse for the failure to file.

Case: Cadichon v. Facelle, NY Slip Op 02058 (1st Dept. 2010)

The opinion is here.

Monday's issue: Torts.

Thursday, March 25, 2010

Motion practice.

Practice point: Mere lack of diligence in furnishing requested materials is not a ground for striking a pleading.

Students should note that monetary sanctions may result from defendant's repeated delays and repeated failure to comply with discovery orders.

Case: Elias v. City of New York, NY Slip Op 02013 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Wednesday, March 24, 2010

Motion practice.

Practice point: Defendant fails to allege a counterclaim for breach of contract if he does not identify the terms of the agreement.

Students should note that a counterclaim cannot sound in legal malpractice if the litigation steps plaintiff took were among several reasonable options.

Case: Sklover & Donath, LLC v. Eber-Schmid, NY Slip Op 02002 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Tuesday, March 23, 2010

Contracts.

Practice point: The agreement should be read as a whole to ensure that undue emphasis is not placed on particular words and phrases.

Students should note that extrinsic evidence may not be considered unless it is determined as a matter of law that the agreement is ambiguous.

Case: Burlington Ins. Co. v. Utica First Ins. Co., NY Slip Op 01906 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Monday, March 22, 2010

Motion practice.

Practice point: A defendant may move to change the place of trial within fifteen days after service, unless plaintiff consents to the change of venue within five days of service, pursuant to CPLR 511[b].

Students should note that a default judgment should not be entered if a delay in answering is brief and plaintiff alleges no prejudice.

Case: Siwek v. Phillips, NY Slip Op 01848 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Contracts.

Friday, March 19, 2010

Motion practice.

Practice point: Under an exception to the statute of frauds, the promise need not be in writing if it is supported by new consideration, and the parties intend the promisor to be a principal debtor and primarily liable.

Students should note that, under the doctrine of tortious misrepresentation, if a person knowingly and falsely claims to have power to bind another, he is liable for losses resulting from justifiable reliance on the claim.

Case: DePetris & Bachrach, LLP v. Srour, NY Slip Op 01840 (1st Dept. 2010)

The opinion is here.

Monday's issue: Motion practice.

Thursday, March 18, 2010

Labor Law.

Practice point: To recover under § 240(1), a plaintiff must demonstrate that a statutory violation proximately caused the injury.

Students should note that the statute protects against a gravity-related hazard that requires a safety device.

Case: Sinkaus v. Regional Scaffolding & Hoisting Co., Inc., NY Slip Op 01885 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Wednesday, March 17, 2010

Motion practice.

Practice point: The complaint is a necessary part of the record on a summary judgment motion.

Students should note that, pursuant to CPLR 3213[b], the motion must be supported by copies of the pleadings.

Case: Williams v. Nelson, NY Slip Op 01883 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Labor Law.

Tuesday, March 16, 2010

Motion practice.

Practice point: Denying receipt of the summons and complaint does not rebut the presumption of proper service created by an affidavit of service.

Students should note that an insurance carrier's delay in defending does not establish a reasonable excuse for a default.

Case: Gartner v. Unified Windows, Doors and Siding, Inc., NY Slip Op 01759 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Monday, March 15, 2010

Motion practice.

Practice point: Defendant waives the physician-patient privilege by asserting the affirmative defense of unanticipated medical emergency, pursuant to CPLR 3121[a] and CPLR 4504[a].

Students should note that a motion to strike the answer for failure to comply with discovery demands will be denied if plaintiff does not demonstrate the relevance of the medical records.

Case: Rivera v. New York City Transit Authority, NY Slip Op 01737 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Friday, March 12, 2010

Motion practice.

Practice point: There is no appeal from a motion to reargue.

Students should note that the motion should be based on newly discovered facts, pursuant to CPLR 2221[e], but courts may use their discretion in the interest of justice.

Case: Sirico v. F.G.G. Prods., Inc., NY Slip Op 01733 (1st Dept. 2010)

The opinion is here.

Monday's issue: Motion practice

Thursday, March 11, 2010

Contracts.

Practice point: When parties set down their agreement in a clear, complete document, the writing will be enforced according to its terms.

Students should note that evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing.

Case: Gladstein v. Martorella, NY Slip Op 01732 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Wednesday, March 10, 2010

Labor Law.

Practice point: § 240(1) applies when the falling of an object is related to a significant risk resulting from the elevation at which materials must be positioned or secured.

Students should note that the fact that plaintiff was working at an elevation when the object fell is not relevant in a falling object case.

Case: Garzon v. MTA, NY Slip Op 01540(1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Contracts.

Tuesday, March 9, 2010

Real Estate Law.

Practice point: Judicial review of decisions made by a condominium's board is limited to whether the action was authorized, and whether it was taken in good faith and in furtherance of the condominium's interests.

Students should note that a permanent injunction may issue if the board acts outside the scope of its authority.

Case: Kaung v. Board of Mgrs. of Biltmore Towers Condominium Assn., NY Slip Op 01620 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Labor Law.

Monday, March 8, 2010

Torts.

Practice point: To establish, as a matter of law, that he was free from comparative negligence, plaintiff must state in his initial affidavit that he used reasonable care in entering the crosswalk where the accident happened.

Students should note that plaintiff's failure to make a prima facie showing requires the denial of summary judgment, regardless of the sufficiency of the opposition papers.

Case: Lum v. Wallace, NY Slip Op 01625 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Real Estate Law.

Friday, March 5, 2010

Labor Law.

Practice point: The collapse of a wall is not the type of elevation-related accident that § 240(1) is intended to guard against.

Students should note that an injury resulting from being struck by an object loosened by vibration is merely a hazard incidental to the workplace.

Case: Kaminski v. 53rd St. and Madison Tower Dev., LLC, NY Slip Op 01532 (1st Dept. 2010)

The opinion is here.

Monday's issue: Torts

Thursday, March 4, 2010

Torts.

Practice point: A viable claim against a professional requires a contractual underlying relationship or a relationship that is the functional equivalent of contractual privity.

Students should note that, standing alone, an ethical violation will not create a duty giving rise to a cause of action that would otherwise not exist at law.

Case: Art Capital Group, LLC v. Neuhaus, NY Slip Op 01600 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Labor Law.

Wednesday, March 3, 2010

Motion practice.

Practice point: When 30 mph winds allegedly caused a piece of plywood to become airborne, the "act of God" affirmative defense will be dismissed since such winds do not constitute an unusual, extraordinary and unprecedented event.

Students should note that defendant's meteorologist's claim of wind gusts over 70 mph is unavailing if it is unsupported by data or methodology.

Case: Verdugo v. Seven Thirty One Ltd. Partnership, NY Slip Op 01595 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Torts.

Motion practice.

Practice point: When 30 mph winds allegedly caused a piece of plywood to become airborne, the "act of God" affirmative defense will be dismissed since such winds do not constitute an unusual, extraordinary and unprecedented event.

Students should note that defendant's meteorologist's claim of wind gusts over 70 mph is unavailing if it is unsupported by data or methodology.

Case: Verdugo v. Seven Thirty One Ltd. Partnership, NY Slip Op 01595 (1st Dept. 2010)



Tomorrow's issue: Torts.

Tuesday, March 2, 2010

Remedies.

Practice point: When the remodeling of an apartment was negligently done, the proper measure of damages is the cost to remedy the defect.

Students should note that the fact that defendant did not have a home improvement license is not a bar to recovery.

Case: O'Malley v. Campione, NY Slip Op 01588 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Monday, March 1, 2010

Motion practice.

Practice point: Attempted service is defective when the mailing is sent to defendant's workplace in an envelope indicating it is from a law firm.

Students should note that a court may compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay, pursuant to CPLR 3012[d].

Case: Gazes v. Bennett, NY Slip Op 01575 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Remedies.