Friday, April 30, 2010

Family Law.

Practice point: When a judgment of divorce is granted on a party's default, there should be an inquest on the economic issues.

Students should note that if the defaulting party has appeared, the inquest should be scheduled with notice to the defaulting party in the manner directed by the court.

Case: Hwang v. Tam, NY Slip Op 03069 (2d Dept. 2010)


Monday's issue: Motion practice.

Thursday, April 29, 2010

Motion practice.

Practice point: The method of service provided for in an order to show cause is jurisdictional, and strict compliance is required.

Students should note that if a party has not appeared by an attorney, service must be on the party, pursuant to CPLR 2103(c).

Case: City of New York v. Miller, NY Slip Op 03059 (2d Dept. 2010)


Tomorrow's issue: Family Law.

Wednesday, April 28, 2010

Motion practice.

Practice point: A defendant may forfeit the right to arbitrate by participating in discovery  without asserting the right to arbitration.

Students should note that defendant does not waive arbitration by serving an answer if it  includes an affirmative defense that the dispute should be determined by arbitration.

Case:  Byrnes v. Castaldi, NY Slip Op 03055 (2d Dept. 2010)


Tomorrow's issue: Motion practice.

Tuesday, April 27, 2010

Motion practice.

Practice point: A party's time to move to renew or reargue an order pursuant to CPLR 2221 does not begin to run until it is served with notice of entry of the order.

Students should note that where an order affects a party's rights, the successful moving party must serve it on the adverse party.

Case: Garcia v. City of New York, NY Slip Op 03033 (1st Dept. 2010)


 Tomorrow's issue: Motion practice.

Monday, April 26, 2010

Motion practice.

Practice point: If there are common questions of law or fact, a motion to consolidate or for a joint trial, pursuant to CPLR 602(a), will be granted, absent a showing of prejudice to a substantial right of the opposing party.

Students should note that where the actions have been commenced in different counties, the trial will be in the county where venue of the first-commenced action currently lies.

Case: Whiteman v. Parsons Transp. Group of N.Y., Inc., NY Slip Op 02944 (2d Dept. 2010)


Tomorrow's issue: Motion practice.

Friday, April 23, 2010

Corporations.

Practice point: A corporation is independent of its owners, who are not personally liable for its obligations.

Students should note that persons may incorporate for the express purpose of limiting their liability.

Case:  Superior Transcribing Serv., LLC v. Paul, NY Slip Op 02942 (2d Dept. 2010)


Monday's issue: Motion practice.

Thursday, April 22, 2010

Attorney-client relations.

Practice point: The attorney-client privilege extends to communications of an agent of either attorney or client, such as defense counsel's forensic accounting consultant.

Students should note that the attorney work product privilege extends to experts retained as consultants to assist with the case.

Case: Hudson Ins. Co. v. Oppenheim, NY Slip Op 02871 (1st Dept. 2010)


Tomorrow's issue: Corporations.

Wednesday, April 21, 2010

Motion practice.

Practice point: A motion to renew is intended to bring to the court's attention new or additional facts that were unknown to movant at the time of the original motion.

Students should note that renewal may be granted at the court's discretion, in the interest of justice, even on facts that were known to movant.

Case:  Eddine v. Federated Dept. Stores, Inc., NY Slip Op 02868 (1st Dept. 2010)


Tomorrow's issue: Attorney-client relations.

Tuesday, April 20, 2010

Employment Law.

Practice point:  When an employee is acting within the scope of employment, the employer is liable for the employee's negligence under a theory of respondeat superior.

Students should note that plaintiff may not proceed with a cause of action sounding in negligent hiring and retention.

Case: Neiger v. City of New York, NY Slip Op 02934 (2d Dept. 2010)

Tomorrow's issue: Motion practice.

Monday, April 19, 2010

Torts.

Practice point: To establish a relationship between an illness and a toxin, plaintiff must establish (1) the level of exposure; (2) that the toxin could cause the illness; and (3) the likelihood that this toxin caused the injury.

Students should note that the distributor of a defective product has an implied right of indemnification as against the manufacturer.

Case:  Martins v. Little 40 Worth Assoc., Inc., NY Slip Op 02866 (1st Dept. 2010)


Tomorrow's issue: Employment Law.

Friday, April 16, 2010

Employment Law.

Practice point:  Military Law § 243(7) preserves the rights of potential employees on civil service eligible lists while they are in military service.

Students should note that the statute does not extend the time to satisfy the minimum educational requirements for eligibility.

Case: Matter of Woods v. New York City Dept. of Citywide Admin. Servs., NY Slip Op 02863 (1st Dept. 2010)


Monday's issue: Torts.

Thursday, April 15, 2010

Torts.

Practice point: A motorist always has a duty to operate the vehicle with reasonable care, which encompasses the duty to see what is there to be seen.

Students should note that the duty is necessarily owed to everyone else on the roads.

Case: Ohlhausen v. City of New York, NY Slip Op 02729 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Employment Law.

Wednesday, April 14, 2010

Motion practice.

Practice point: Leave to file a late claim will not be granted with respect to a false imprisonment claim if it accrued more than one year prior to the motion, pursuant to CPLR 215[3], and  Court of Claims Act § 10[6].

Students should note that the fact that claimant's medical records may be at a State facility does not mean that the State had an opportunity to investigate the circumstances giving rise to the claim.

Case: Lerner v. State of New YorkNY Slip Op 02723 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Tuesday, April 13, 2010

Property.

Practice point: A restrictive covenant will be strictly construed against the party seeking its enforcement, and it will not be interpreted beyond its clear meaning.

Students should note that where the covenant's language admits two interpretations, the one that limits the restriction will be adopted.

Case: Kemp v. Village of Scarsdale, NY Slip Op 02518 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Monday, April 12, 2010

School Law.

Practice point: Schools have a duty to supervise their pupils, and will be liable for foreseeable injuries proximately related to inadequate supervision.

Students should note that liability cannot sound in negligent supervision if plaintiff was a voluntary participant in the fight.

Case: Keaveny v. Mahopac Cent. School Dist.NY Slip Op 02517 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Property.

Friday, April 9, 2010

Motion practice.

Practice point: The equitable doctrine of subrogation can be invoked when, to protect his own rights or property, a party is compelled to pay the debt of a third person.

Students should note that the doctrine cannot be invoked when the payments were voluntary.

Case:
Broadway Houston Mack Dev., LLC v. Kohl, NY Slip Op 02500 (2d Dept. 2010)

Here is the opinion.


Monday's issue: School Law.

Thursday, April 8, 2010

Torts.

Practice point: A property owner is not liable for damages resulting from a trivial defect over which a pedestrian stumbles or trips.

Students should note that, in determining whether a defect is trivial as a matter of law, the court will consider the width, depth, elevation, irregularity and appearance, along with the time, place and circumstances of the injury.

Case: Aguayo v. New York City Hous. Auth., NY Slip Op 02494 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Wednesday, April 7, 2010

Motion practice.

Practice point: The law of the case does not apply to discretionary rulings regarding case management.

Students should note that when defendant has produced some documents and is willing to continue production, the sanction of striking an answer is inappropriate.

Case: Allstate Ins. Co. v. Buziashvili, NU Slip Op 02479 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Tuesday, April 6, 2010

Contracts.

Practice point: Absent a contract, a claim cannot sound in breach of the implied covenant of good faith and fair dealing.

Students should note that an implied contract requires specific and material promises in a school's publications.

Case: Keefe v. New York Law School, NY Slip Op 02477 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Monday, April 5, 2010

Motion practice.

Practice point: In moving to dismiss pursuant to CPLR 3211(a)(5), defendant must establish, prima facie, that the time in which to commence the action has passed.

Students should note that the time is computed from the accrual of the cause of action to the interposition of the claim, pursuant to CPLR 203[a].

Case: Minskoff Grant Realty & Mgt. Corp. v. 211 Mgr. Corp., NY Slip Op 02108 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Contracts.

Friday, April 2, 2010

Motion practice.

Practice point: The fact that plaintiff was the only witness to the workplace accident does not preclude granting summary judgment in his favor.

Students should note that mere speculation is insufficient to defeat summary judgment.

Case:McCaffery v. Wright & Co. Constr.,Inc., NY Slip Op 02107 (2d Dept. 2010)

The opinion is here.

Monday's issue: Motion practice.

Thursday, April 1, 2010

Motion practice.

Practice point: The court cannot convert a CPLR 3211 motion to dismiss into a CPLR 3212 motion for summary judgment.

Students should note that if plaintiff asserts a Labor Law § 740 cause of action, he waives any other cause of action based on the alleged retaliation.

Case: Garner v. China Natural Gas, Inc., NY Slip Op 02095 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.