Tuesday, November 30, 2010

Motion practice.

Practice point: Generally, a declaratory judgment action is governed by the six-year catch-all statute of limitations of CPLR 213(1).

Students should note that if the action could have been brought in a different form, asserting a particular cause of action, the limitations period applicable to that cause of action will apply.

Case: Walter v. Starbird-Veltidi, NY Slip Op 08095 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Monday, November 29, 2010

Motion practice.

Practice point: Evidentiary rulings are not appealable, either as of right or by permission, pursuant to CPLR 5701.

Students should note that a motion to set aside a jury verdict, pursuant to CPLR 4404, requires a showing that no line of reasoning and permissible inference would lead a rational person to the jury’s finding.

Case: Rosenfeld v. Baker, NY Slip Op 08087 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Friday, November 26, 2010

Torts.

Practice point: A cause of action sounding in fraudulent representation requires a showing that defendant spoke a falsehood intending to deprive plaintiff of a benefit, and that plaintiff was thereby damaged.

Students should note that the heightened pleading standard of CPLR 3016(b) requires only that the allegation be set forth so that defendant is informed of the incident complained of.

Case: RBE Northern Funding, Inc. v. Stone Mountain Holdings, LLC, NY Slip Op 08086 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Motion practice.

Thursday, November 25, 2010

Court holiday.

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

Happy Thanksgiving, and thank you for your support throughout the year.

Tomorrow’s issue: Torts.

Wednesday, November 24, 2010

Landlord-Tenant Law.

Practice point: Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including a third party's criminal conduct.

Students should note that a tenant’s recovery of damages requires a showing that the landlord's negligence was a proximate cause of the injury.

Case: Muong v. 550 Ocean Avenue, LLC, NY Slip Op 08078 (2d Dept. 2010)

Here is the decision.

Friday’s issue: Torts.

Tuesday, November 23, 2010

Attorney-client relations.

Practice point: Filing the requisite retainer statement with the Office of Court Administration is a necessary to receiving a fee.

Students should note filing nunc pro tunc will preserve the right to recover a fees, but only if the attorney sought leave of court for the filing.

Case: Giano v. Ioannou, NY Slip Op 08064 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Landlord-Tenant Law.

Monday, November 22, 2010

Torts.

Practice point: If a private physician attends a patient at a hospital, it is the physician’s duty, not the hospital’s, to get the patient's informed consent.

Students should note that a hospital employee's memorializing the consent does not transfer the duty to the hospital.

Case: Sela v. Katz, NY Slip Op 07918 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Attorney-client relations.

Friday, November 19, 2010

Attorney-client relations.

Practice point: Pursuant to Judiciary Law § 475, from the commencement of the action, the appearing attorney has a lien on the client's cause of action, and the lien attaches to any favorable final order or settlement.

Students should note that the lien is forfeited if the attorney withdraws without sufficient cause.

Case: Nassour v. Lutheran Medical Center, NY Slip Op 07906 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Torts.

Thursday, November 18, 2010

Motion practice.

Practice point: An account stated is an agreement based on prior transactions with respect to the correctness of the account items and the balance due.

Students should note that the agreement may be implied from the retention of an account rendered, without objection, for an unreasonable period of time.

Case: Landau v. Weissman, NY Slip Op 07899 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Attorney-client relations.

Wednesday, November 17, 2010

Motion practice.

Practice point: A person whose conveyance or encumbrance is recorded after the filing of a notice of pendency is bound by all subsequent proceedings, as if he were a party, pursuant to CPLR 6501.

Students should note that, to cut off a prior lien, such as a mortgage, the purchaser or encumbrancer must have no knowledge of the outstanding lien and must win the race to the recording office.

Case: DLJ Capital Mortgage, Inc. v. Windsor, NY Slip Op 07886 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Tuesday, November 16, 2010

Motion practice.

Practice point: To prevail on a motion for civil contempt, movant must demonstrate a clear and unequivocal mandate of the court, and prejudice of movant's rights.

Students should note that the mere act of disobedience, regardless of motive, can sustain the finding.

Case: Bais Yoel Ohel Feige v. Congregation Yetev Lev D'Satmar of Kiryas Joel, NY Slip Op 07875 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Monday, November 15, 2010

Labor Law.

Practice point: There is an exemption to liability for one and two-family homeowners who merely contract for the work and do not supervise it.

Students should note that the owner’s attendance at meetings regarding the work's progress does not rise to the level of supervision necessary to impose liability.

Case: Castellanos v. United Cerebral Palsy Assn. of Greater Suffolk, Inc., NY Slip Op 07714 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Labor Law.

Practice point: There is an exemption to liability for one and two-family homeowners who merely contract for the work and do not supervise it.

Students should note that the owner’s attendance at meetings regarding the work's progress does not rise to the level of supervision necessary to impose liability.

Case: Castellanos v. United Cerebral Palsy Assn. of Greater Suffolk, Inc., NY Slip Op 07714 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Friday, November 12, 2010

Contracts.

Practice point: Implicit in all agreements is a covenant of good faith and fair dealing.

Students should note that there is a breach when a party acts in a way that deprives the other of a benefit of the agreement.

Case: Atlas El. Corp. v. United El. Group, Inc., NY Slip Op 07699 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Labor Law.

Thursday, November 11, 2010

Court holiday.

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

To all Veterans, thank you for your service, and, if you have a family member in service today, thank you for your sacrifice.

Tomorrow's issue: Contracts.

Wednesday, November 10, 2010

Motion practice.

Practice point: An unlicensed contractor cannot recover damages based either on breach of contract or quantum meruit.

Students should note that a home improvement contractor must plead possession of a valid license in order to commence an action to foreclose a mechanic's lien.

Case: Quick Start Constr. Corp. v. Staiger, NY Slip Op 07731 (2d Dept. 2010)

Here is the decision.

Friday's issue: Contracts.

Tuesday, November 9, 2010

Torts.

Practice point: To establish a building owner’s liability for an elevator-related injury, a plaintiff must establish that there was a defect of which the owner had actual or constructive notice.

Students should note that, if the owner hires an elevator maintenance company, the owner can be liable if it has notice of a defect and does not notify the elevator company.

Case: Cilinger v. Arditi Realty Corp., NY Slip Op 07715 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Monday, November 8, 2010

Motion practice.

Practice point: On an appeal from a judgment entered after a nonjury trial, the Appellate Division may render the judgment it finds is warranted by the facts.

Students should note that, in a close case, the Court will take into account the fact that the trial judge had the advantage of seeing the witnesses.

Case: Bryant v. State of New York, NY Slip Op 07710 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Friday, November 5, 2010

Torts.

Practice point: For there to be strict liability for harm caused by a domestic animal, the owner must have known, or should have known, of the animal's vicious propensities.

Students should note that the violation of a local leash law is only evidence of negligence.

Case: Wright v. Fiore, NY Slip Op 07531 (2d Dept. 2010)

Here is the decision.

Monday's issue: Motion practice.

Thursday, November 4, 2010

Torts.

Practice point: To establish the existence of a fiduciary relationship between a cleric and a congregant, there must be a showing of de facto control and dominance in the counseling relationship.

Students should note that the test is whether the congregant was inherently vulnerable and incapable of self-protection.

Case: Spielman v. Carrino, NY Slip Op 07527 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Wednesday, November 3, 2010

Employment Law.

Practice point: Pursuant to Workers' Compensation Law §§ 11 and 29(6), an employee who is entitled to receive compensation benefits may not sue the employer.

Students should note that, similarly, the employee cannot sue a special employer.

Case: Dulak v. Heier, NY Slip Op 07509 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Tuesday, November 2, 2010

Court holiday.

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

Tomorrow's issue: Employment Law.

Monday, November 1, 2010

Municipalities Law.

Practice point: A municipality, on notice of a dangerous traffic condition, may be liable if it does not consider reasonable measures to alleviate the condition, or, if it unjustifiably delays taking action.

Students should note that the municipality has a continuing duty to review its traffic plans.

Case: Turturro v. City of New York, NY Slip Op 07329 (2d Dept. 2010)

Here is the decision.

Wednesday's issue: Employment Law.