Thursday, September 30, 2010

Motion practice.

Practice point: CPLR 3101(a) will be construed liberally so that there will be disclosure of any material that is even arguably relevant.

Students should note that the essential test is one based on usefulness and reason.

Case: Lentz v. Nic's Gym, Inc., NY Slip Op 06620 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Wednesday, September 29, 2010

Contracts.

Practice point: All contracts imply a covenant of good faith and fair dealing in the course of performance.

Students should note that, pursuant to this covenant, neither party shall do anything which destroys the other party's right to the fruits of its contract.

Case: Forman v. Guardian Life Ins. Co. of Am., NY Slip Op 06606 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Tuesday, September 28, 2010

Insurance Law.

Practice point: Noncompliance with a notice condition relieves the insurer of its obligation under the contract.

Students should note that a 60-day delay, without an excuse, violates the notice condition as a matter of law.

Case: Hermany Farms, Inc. v. Seneca Ins. Co., Inc., NY Slip Op 06607 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Contracts.

Monday, September 27, 2010

Employment Law.

Practice point: A special employee is one who is transferred for a limited time of whatever duration to the service of another.

Students should note that, in determining whether there is a special employment, courts will consider who controls and directs the work, and whether the employee knew of and consented to the special employment relationship.

Case: George v. IBC Sales Corp., NY Slip Op 06567 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Insurance Law.

Friday, September 24, 2010

Torts.

Practice point: New York does not recognize civil conspiracy to commit a tort as an independent cause of action.

Students should note that an action sounding in conversion does not lie where the property involved is real property.

Case: Dickinson v. Igoni, NY Slip Op 06565 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Employment Law.

Thursday, September 23, 2010

Motion practice.

Practice point: A court may consider affidavits and other evidence to remedy defects in a complaint.

Students should note that inconsistent causes of action may be pleaded in the alternative, pursuant to CPLR 3014.

Case: Costello v. Verizon N.Y., Inc., NY Slip Op 06562 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Wednesday, September 22, 2010

Ethics.

Practice point: Sanctions for the filing of frivolous actions generally range from censure to a one-year suspension.

Students should note that a lawyer cannot knowingly advance a claim or defense that is unwarranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the law.

Case: Matter of Chiofalo, NY Slip Op 06555 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Tuesday, September 21, 2010

Insurance Law.

Practice point: The insurer has a duty to defend when the complaint's allegations suggest a reasonable possibility of coverage, or where the insurer has actual knowledge of facts establishing a reasonable possibility.

Students should note that an ambiguity in an exclusionary clause will be construed most strongly against the insurer.

Case: DMP Contr. Corp. v. Essex Ins. Co., NY Slip Op 06548 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Ethics.

Monday, September 20, 2010

Ethics.

Practice point: Failure to appear at a disciplinary hearing before the Referee results in the charges being deemed admitted, pursuant to 22 NYCRR 605.12(c) (4).

Students should note that, after a suspension, the continued practice of law constitutes a misdemeanor under Judiciary Law § 486.

Case: Matter of McLain-Sewer, NY Slip Op 06543 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Insurance Law.

Friday, September 17, 2010

Real Estate Law.

Real Estate Law.

Practice point: The owner of waterway uplands has riparian rights, including reasonable access to the water.

Students should note that these rights are limited to the waters in front of the owner's property, and do not extend to the frontage of the adjoining parcel.

Casee: Kearns v. Thilburg, NY Slip Op 06518 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Ethics.

Thursday, September 16, 2010

Municipalities Law.

Practice point: The Volunteer Firefighters' Benefit Law is the exclusive remedy of anyone entitled to recover damages resulting from a volunteer firefighter's line-of-duty injury.

Students should note that the Legislature is presumed to know the law in existence at the time it enacts legislation.

Case: Brady v. Village of Malverne, NY Slip Op 06513 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Real Estate Law.

Wednesday, September 15, 2010

Ethics.

Practice point: Public censure is the appropriate sanction in situations involving neglect, where the conduct is aberrational and the attorney has shown remorse and has cooperated in the disciplinary process.

Students should note that public censure is likewise appropriate in the case of a false notarization, where there are mitigating factors.

Case: Matter of Essien, NY Slip Op 06512 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Municipalities Law.

Tuesday, September 14, 2010

Motion practice.

Practice point: A party is required to preserve a claim that the jury verdict is inconsistent.

Students should note that the issue must be raised before the jury is discharged.

Case: Arrieta v. Shams Waterproofing, Inc., NY Slip Op 06508 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Ethics.

Monday, September 13, 2010

Torts.

Practice point: A targeted attack on an apartment building's resident does not result in a landlord's liability for failure to provide security.

Students should note that when the action is dismissed as against defendant, defendant's cross-claim is dismissed.

Case: Flynn v. Esplanade Gardens, Inc., NY Slip Op 06506 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Friday, September 10, 2010

Motion practice.

Practice point: In opposing a motion for a default judgment, an affidavit of merit is not necessary if an order has not been entered.

Students should note that an insurance carrier's delay in assigning counsel is reasonable cause for a defendant's default in answering.

Case: Arrington v. Bronx Jean Co., NY Slip Op 06399 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Torts.

Thursday, September 9, 2010

Trusts and Estates.

Practice point: A power of attorney that is coupled with an interest or which has been given in exchange for valuable consideration is irrevocable.

Students should note that, in order for a power to be considered coupled with an interest, the agent must have a personal estate in the thing or matter underlying the power.

Case: Frankel v. J.P. Morgan Chase, NY Slip Op 06476 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Wednesday, September 8, 2010

Real Estate Law.

Practice point: New York law imposes no duty on the seller to disclose anything about the property when the parties deal at arm's length, unless there is active concealment.

Students should note that the seller's silence, standing alone, does not amount to an actionable concealment.

Case: Beach 104 St. Realty, Inc. v. Kisslev-Mazel Realty, LLC, NY Slip Op 06474 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Trusts and Estates.

Tuesday, September 7, 2010

Ethics.

Practice point: An attorney's failure over the course of nine months to commence an action is sanctionable as neglect within the meaning of DR 6-101(A)(3).

Students should note that the issue of the statute of limitation's expiration is irrelevant.

Case: Matter of Block, NY Slip Op 06400 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Real Estate Law.

Monday, September 6, 2010

Happy Labor Day.

Because of the Court holiday, there is no post today.

Tomorrow's issue: Ethics.

Friday, September 3, 2010

Administrative Law.

Practice point: A petitioner objecting to an agency's acts must exhaust administrative remedies before commencing litigation.

Students should note that an exception is where the act is challenged as unconstitutional or beyond the agency's power.

Case: Pitts v. N.Y. City Off. of Comptroller, NY Slip Op 06422 (2d Dept. 2010)

Here is the opinion.

Tuesday's issue: Ethics.

Thursday, September 2, 2010

Motion practice.

Practice point: The writ of prohibition is available only where there is a clear legal right, and only in those cases where a court acts or threatens to act in excess of its powers.

Students should note that it is not available to correct errors of substantive law or procedure, however grievous.

Case: Dowd v. Buchter, NY Slip Op 06419 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Administrative Law.

Wednesday, September 1, 2010

Motion practice.

Practice point: Ignorance of the notice of claim requirement is not a reasonable excuse for failure to timely serve.

Students should note that petitioner must establish that late notice would not be prejudicial, and that the City had actual knowledge of the essential facts within 90 days of the claim's accrual.

Case: Bush v. City of New York, NY Slip Op 06417 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.