Friday, July 30, 2010

Motion practice.

Practice point: There is a presumption that the public is entitled to access to judicial proceedings and court records.

Students should note that a court is empowered to seal court records, pursuant to section 216.1(a) of the Uniform Rules for Trial Courts.

Case: Mosallem v. Berenson, NY Slip Op 06150 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Ethics.

Thursday, July 29, 2010

Motion practice.

Practice point: An issue decided in a criminal proceeding may be given preclusive effect in a subsequent civil action, if there is an identity of issue and if there was a full and fair opportunity to contest the decision.

Students should note that the imposition of a constructive trust requires a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment.

Case: Abacus Fed. Savings Bank v. Lim, NY Slip Op 06143 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Wednesday, July 28, 2010

Motion practice.

Practice point: To disqualify counsel, movant must prove, among other things, a prior attorney-client relationship with opposing counsel.

Students should note that representation of a business entity does not make the firm counsel to an individual member, absent the assumption of an affirmative duty to represent.

Case: Campbell v. McKeon, NY Slip Op 06148 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: To disqualify counsel, movant must prove, among other things, a prior attorney-client relationship with opposing counsel.

Students should note that representation of a business entity does not make the firm counsel to an individual member, absent the assumption of an affirmative duty to represent.

Case: Campbell v. McKeon, NY Slip Op 06148 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Tuesday, July 27, 2010

Real Estate Law.

Practice point: There is no liability for a seller's failing to disclose information, in an arms length transaction, absent active concealment of a defective condition.

Students should note that even proof of active concealment is ineffective if the buyer should have known of the defect.

Case: Laxer v. Edelman, NY Slip Opinion 06159 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Monday, July 26, 2010

Property.

Practice point: The possession of land without any claim of right, no matter how long it may be continued, gives no title.

Students should note that reliance on the doctrine of "practical location" requires proof of a clear demarcation of a boundary line.

Case: Estate of Becker v. Murtagh, NY Slip Op 06157 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Real Estate Law.

Friday, July 23, 2010

Motion practice.

Practice point: On a party's death, the court no longer has jurisdiction to conduct proceedings, and the action is stayed as to decedent pending substitution of a legal representative.

Students should note that any determination rendered absent that substitution is a nullity, pursuant to CPLR 1015, 1021.

Case: Stancu v. Oh, NY Slip 05754 (2d Dept. 2010)

Here is the opinion.

Monday’s issue: Property.

Thursday, July 22, 2010

Torts.

Practice point: A libel action must allege statements of fact, not opinion.

Students should note that an opinion statement is not actionable even if it is accompanied by a recitation of facts on which it is based.

Case: Halstead v. Strauss, NY Slip Op 05731 (2d Dept. 2010)

Here is the opinion.

Tomorrow’s issue: Motion practice.

Wednesday, July 21, 2010

Motion practice.

Practice point: A motion to dismiss based on CPLR 3211(a)(1) requires documentary evidence refuting plaintiff's factual allegations, establishing a defense as a matter of law.

Students should note that to be considered documentary, evidence must be unambiguous and of undisputed authenticity.

Case: Springer v. Almontaser, NY Slip Op 06081 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Tuesday, July 20, 2010

Labor Law.

Practice point: A separate prime contractor is not liable under for injuries to the employees of other contractors where there is no privity of contract.

Students should note, however that where that contractor has been delegated authority to supervise and control the work, the contractor becomes a statutory agent of the owner or general contractor.

Case: Barrios v. City of New York, NY Slip Op 06072 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Monday, July 19, 2010

Motion practice.

Practice point: A defendant looking to amend the answer to allege a counterclaim is not required to submit evidentiary proof.

Students should note that the tort of trade libel or injurious falsehood requires the knowing publication of false and derogatory statements calculated to prevent others from dealing with the plaintiff

Case: Banco Popular N. Am. v. Lieberman, NY Slip Op 06067 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Labor Law.

Friday, July 16, 2010

Landlord-Tenant Law.

Practice point: To establish constructive eviction, a tenant must prove wrongful acts that deprived him of the beneficial use and enjoyment of the premises.

Students should note that partial actual eviction requires that the tenant be physically prevented from using a portion of the premises

Case: Pacific Coast Silks, LLC v. 247 Realty, LLC, NY Slip Op 05887 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Thursday, July 15, 2010

Practice point: At a fact-finding hearing in an abuse and/or neglect proceeding pursuant to Family Court Act article 10, the standard is a preponderance of the evidence.

Students should note that there is a religious exemption from the Public Health Law's immunization requirements, pursuant to Public Health Law § 2164(9)

Case:Matter of Isaac J., NY Slip Op 05997 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Landlord-Tenant Law.

Wednesday, July 14, 2010

Motion practice.

Practice point: There is no cause of action sounding in deceptive acts and practices, pursuant to General Business Law § 349, arising from a private contractual dispute.

Students should note that there is no cause of action for unjust enrichment if there is a valid agreement.

Case: Merin v. Precinct Developers, LLC, NY Slip Op 05691 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Family Law.

Tuesday, July 13, 2010

Motion practice.

Practice point: A certificate of acknowledgement attached to an instrument such as a deed raises a rebuttable presumption of due execution.

Students should note that if a deposition transcript is not sent to the deponent for review, pursuant to CPLR 3116(a), the transcript is inadmissible at trial.

Case: Moffett v. Gerardi, NY Slip Op 05990 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Monday, July 12, 2010

Motion practice.

Practice point: Absent evidence that defendant willfully and contumaciously failed to appear for deposition, the court will not strike the answer.

Students should note that the appropriate remedy is to preclude defendant from offering any testimony at trial.

Case: Cobenas v. Ginsburg Dev. Cos., LLC, NY Slip Op 05718 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Friday, July 9, 2010

Torts.

Practice point: The doctrine of primary assumption of the risk includes those risks associated with the construction of the playing surface, and any open and obvious condition on it.

Students should note that the mere fact that defendant could have provided safer conditions is beside the point where the risk is open and obvious.

Case: Bendig v. Bethpage Union Free School Dist., NY Slip Op 05715 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Thursday, July 8, 2010

Motion practice.

Practice point: In deciding a motion, the court may search the record and award summary judgment to a nonmoving party, pursuant to CPLR 3212(b).

Students should note that, in the interest of justice, a court may consider newly submitted evidence in a motion to renew, even if it was available in the prior motion.

Case: Atiencia v. Mbbco Ii, LLC, NY Slip Op 05872 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Wednesday, July 7, 2010

Contracts.

Practice point: Where the language is not clear enough to enforce an obligation to indemnify, the court will not rewrite the contract to supply an obligation the parties themselves did not specify.

Students should note that attorney's fees are incidents of litigation, and a prevailing party may not collect except by express agreement, statute or court rule.

Case: Adesso Café Bar & Grill, Inc. v. Burton, NY Slip Op 05710 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Tuesday, July 6, 2010

Employment Law.

Practice point: Workers' compensation is the exclusive remedy for damages resulting from an injury arising out of and in the course of employment.

Students should note that if the injured worker elects to receive Workers' Compensation benefits from the general employer, there is no action at law against a special employer, pursuant to Workers' Compensation Law § 29[6].

Case: Franco v. Kaled Mgt. Corp., NY Slip Op 05512 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Contracts.

Monday, July 5, 2010

Happy Holiday.

The courts are closed today, and so there is no post.

Best wishes for a safe and happy Independence Day.

Special thanks to the men and women whose service and sacrifice has helped to keep us free.

Friday, July 2, 2010

Corporations.

Practice point: A partnership is an association of two or more persons to carry on as co-owners a business for profit, pursuant toPartnership Law § 10[1].

Students should note that if there is no written agreement between the parties, the court will decide whether there is a partnership based on the conduct, intention, and relationship between the parties.

Case: Czernicki v. Lawniczak, NY Slip Op 05503 (2d Dept. 2010)

Here is the opinion.

Tuesday's issue: Employment Law.

Thursday, July 1, 2010

Labor Law.

Practice point: Section 200 codifies an owner or contractor's common-law duty to maintain a safe construction site.

Students should note that if plaintiff was injured as the result of an allegedly dangerous condition at the work site, liability may attach if defendant had control over the work site and either created or had actual or constructive notice of the dangerous condition.

Case: Bruno v. Board of Educ. of Cent. School Dist. #5, NY Slip Op 05498 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Corporations.

Labor Law.

Practice point: Section 200 codifies an owner or contractor's common-law duty to maintain a safe construction site.

Students should note that if plaintiff was injured as the result of an allegedly dangerous condition at the work site, liability may attach if defendant had control over the work site and either created or had actual or constructive notice of the dangerous condition.

Case: Bruno v. Board of Educ. of Cent. School Dist. #5, NY Slip Op 05498 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Corporations.

Labor Law.

Practice point: Section 200 codifies an owner or contractor's common-law duty to maintain a safe construction site.

Students should note that if plaintiff was injured as the result of an allegedly dangerous condition at the work site, liability may attach if defendant had control over the work site and either created or had actual or constructive notice of the dangerous condition.

Case: Bruno v. Board of Educ. of Cent. School Dist. #5, NY Slip Op 05948 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Corporations.