Wednesday, June 30, 2010

Legal malpractice.

Practice point: A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement was effectively compelled by counsel's mistakes.

Students should note if plaintiff's claim of breach of fiduciary duty is essentially a claim of malpractice, it is governed by the malpractice standard, namely, that, but for counsel's action, plaintiff would have prevailed in the underlying action.

Case: Boone v. Bender, NY Slip Op 05497 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Labor Law.

Tuesday, June 29, 2010

Family Law.

Practice point: New York does not recognize common-law marriages contracted within the state, pursuant to Domestic Relations Law § 11.

Students should note that a common-law marriage contracted in another state will be recognized as valid here if it is valid there.

Case: Baron v. Suissa, NY Slip Op 05495 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Legal malpractice.

Monday, June 28, 2010

Motion practice.

Practice point: To vacate a default, defendant must demonstrate a reasonable excuse and a potentially meritorious defense, pursuant to CPLR 5015[a][1].

Students should note that it is a reasonable excuse if defendant had a good faith belief that its interests were being protected by the insurer that had defended in a related matter.

Case: Gerdes v. Canales, NY Slip Op 05358 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Family Law.

Friday, June 25, 2010

Employment Law.

Practice point: Without a legitimate employer interest to protect, restrictive covenants are unenforceable.

Students should note that, in such a circumstance, the issue of partial enforcement does not arise.

Case: Allways Elec. Corp. v. Abrams, NY Slip Op 05346 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Thursday, June 24, 2010

Motion practice.

Practice point: An order denying a motion to preclude testimony of plaintiff's expert witness or to direct that witness to submit to a Frye hearing is an evidentiary ruling and an advisory opinion.

Students should note that the order is not appealable, either as of right or by leave.

Case: Fontana v. LaRosa, NY Slip Op 05357 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Employment Law.

Wednesday, June 23, 2010

Torts.

Practice point: A company which agrees to maintain an elevator in safe operating condition may be liable for injuries resulting from a failure to correct a condition of which it knew or should have known.

Students should note that the property owner continues to owe a nondelegable duty to maintain its buildings' elevators in a reasonably safe manner.

Case: Dykes v. Starrett City, Inc., NY Slip Op 05356 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Tuesday, June 22, 2010

Motion practice.

Practice point: Pursuant to CPLR 3001, the supreme court may render a declaratory judgment as to the rights of the parties to a justiciable controversy.

Students should note that a justiciable controversy requires a real dispute, involving substantial legal interests for which a declaration of rights will have some practical effect.

Case: Chanos v. Madac, LLC, NY Slip Op 05350 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Monday, June 21, 2010

Motion practice.

Practice point: The construction of foreign law is a legal question appropriate for summary resolution.

Students should note that such a motion can be based on expert affidavits interpreting the relevant legal provisions.

Case: Gusinsky v. Genger, NY Slip Op 04931 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Friday, June 18, 2010

Torts.

Practice point: In the case of a rear-end collision, the owner and operator of the front vehicle are entitled to summary judgment on liability unless the following vehicle's driver offers a non-negligent explanation.

Students should note that depositions are not needed since the opponents of the motion had personal knowledge of the facts, pursuant to CPLR 3212[f]).

Case: Avant v. Cepin Livery Corp., NY Slip Op 04924 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Thursday, June 17, 2010

Motion practice.

Practice point: Once a medical malpractice defendant has established the absence of any departure from good and accepted practice, plaintiff must submit a physician's affidavit attesting to such a departure and opining that it was a causal competent in the injury.

Students should note that an expert's affidavit containing bare conclusory assertions is insufficient to defeat summary judgment.

Case: Bacani v. Rosenberg, NY Slip Op 04919 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Wednesday, June 16, 2010

Motion practice.

Practice point: Pursuant to CPLR 5015(a), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just.

Students should note that a claim of financial distress is likely insufficient to justify the exercise of this discretionary power.

Case: Katz v. Marra, NY Slip Op 04957 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Tuesday, June 15, 2010

Corporations.

Practice point: A limited liability company's organizer is a fiduciary of the investors it solicits to become members, pursuant to Limited Liability Company Law § 203[a][iii]).

Students should note that the fiduciary duty includes the obligation to disclose any interests that might affect the company and its members, including profits that the promoter makes from organizing the company.

Case: Roni LLC v. Arfa, NY Slip Op 04700 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Monday, June 14, 2010

Motion practice.

Practice point: A plaintiff may seek leave to enter a default judgment when a defendant has failed to appear within the time required, pursuant to CPLR 3215(a).

Students should note that there is no requirement, statutory or otherwise, that an answer must be filed with the clerk in order for a defendant to appear in an action.

Case: Goonan v. New York City Transit Authority, NY Slip Op 04742 (2d Dept. 2010)

Here is the opinion

Tomorrow's issue: Corporations.

Friday, June 11, 2010

Conracts.

Practice point: Generally, a contractual provision absolving a party from its own negligence or limiting its liability is enforceable.

Students should note, however, that, as a matter of public policy, a contracting party may not insulate itself from damages caused by grossly negligent conduct.

Case: Goldstein v. Carnell Associates, Inc., NY Slip Op 04741 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Thursday, June 10, 2010

Trusts and Estates.

Practice point: If the signature on a power of attorney is forged, the document executed by the purported attorney-in-fact is void.

Students should note that if a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser receives nothing.

Case: First Natl. Bank of Nev. v. Williams, NY Slip Op 04737 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Contracts.

Wednesday, June 9, 2010

Motion practice.

Practice point: Pursuant to CPLR 3211(b), a party may move to dismiss a defense on the ground that a defense is not stated, or that it has no merit..

Students should note that an agent who signs on behalf of a principal, without disclosing the principal's identity or legal status, may be held individually liable on the contract.

Case: Courthouse Corporate Ctr. LLC v. Schulman, NY Slip Op 04728 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Trusts and Estates.

Tuesday, June 8, 2010

Statutes of limitations.

Practice point: The time period for fraud is the greater of six years from the cause of action's accrual, or two years from the time the plaintiff discovered, or could have discovered, the fraud, pursuant to CPLR 213[8].

Students should note that an action alleging unjust enrichment and seeking a constructive trust must be commenced within six years of the wrongful act giving rise to a duty of restitution.

Case: Coombs v. Jervier, NY Slip Op 04727 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Monday, June 7, 2010

Products liability.

Practice point: A party injured as a result of a defective product may seek relief against the product manufacturer or others in the chain of distribution.

Students should note that a product may be defective because of a mistake in the manufacturing process; because of a defective design; or because the manufacturer failed to provide adequate warnings regarding the product's use.

Case: Rabon-Willimack v. Robert Mondavi Corp., NY Slip Op 04354 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Statutes of limitation.

Friday, June 4, 2010

Motion practice.

Practice point: The court may determine that a pattern of noncompliance with discovery orders is so significant that the severe sanction of striking the answer is appropriate.

Students should note that a court need not issue a "last chance" warning or order before exercising its discretion to strike a pleading.

Case: Fish & Richardson, P.C. v. Schindler, NY Slip Op 04465 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Products liability.

Thursday, June 3, 2010

Motion practice.

Practice point: The court will deny leave to amend an answer to assert counterclaims that are merely restatements of previously dismissed counterclaims, or that allege conclusory, speculative or time-barred claims.

Students should note that the business judgment rule can only be defeated by nonconclusory allegations of bad faith, a conflict of interest or self-dealing.

Case: Kassover v. PVP-GCC Holdingco II LLC, NY Slip Op 04453 (1st Dept. 2010).

Here is the opinion.

Tomorrow's issue: Motion practice.

Wednesday, June 2, 2010

Administrative Law.

Practice point: A person who objects to an agency's action must exhaust the administrative remedies before litigating.

Students should note that this rule does not apply if the action is challenged as unconstitutional, unless the claim relies on factual issues that are reviewable administratively.

Case: Sumner v. Hogan, NY Slip Op 04446 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Tuesday, June 1, 2010

Motion practice.

Practice point: The court may require plaintiff to post an undertaking when granting a preliminary injunction to permit the parties to engage in mediation.

Students should note that defendant may claim legal fees even if there is a stipulation that each party will bear its own costs and expenses.

Case: Golub v. Board of Mgrs.of Greentree at Murray Hill, NY Slip Op 04247 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Administrative Law.