Thursday, March 31, 2011

Real estate contracts.

Practice point: When it is expressly stated that time is of the essence, the parties are obligated to strictly comply with the contract terms.

Students should note that, once the seller is in breach, the buyer has no further duty to entertain the seller's proposed alternate closing dates.

The case is Champion v. Blue Water Advisors, Inc., NY Slip Op 02045 (1st Dept. 2011).


Tomorrow's issue is attorney-client relationships.

Wednesday, March 30, 2011

Statute of limitations.

Practice point: Generally, a cause of action alleging medical malpractice accrues on the date of the alleged wrongful act or omission, and the statute of limitations begins running on that date.

Students should note that when the patient is undergoing a continuous course of treatment for the same condition or complaint that gives rise to the lawsuit, the statute of limitations will not begin to run until the end of the course of treatment.

The case is Udell v. Naghavi, NY Slip Op 01997 (2d Dept. 2011).


Tomorrow's issue is real estate contracts.

Tuesday, March 29, 2011

Labor Law.

Practice point: A construction manager is generally not considered a contractor responsible for worker safety, pursuant to §§ 200 and 241(6). However, he may become responsible if he has been delegated the authority and duties of a general contractor, or if he functions as an agent of the property owner.

Students should note that a party is deemed to be an agent of an owner or general contractor when it has supervisory control and authority over the work being done.

The case is Rodriguez v. JMB Architecture, LLC, NY Slip Op 01990 (2d Dept. 2011).


Tomorrow's issue is statute of limitations.

Monday, March 28, 2011

Labor Law.

Practice point:  Because defendant-general contractor admitted that there was no place to which a harness could have been tied, defendants did not raise the inference that plaintiff's failure to use a safety harness was the sole proximate cause of his injury.

Students should note that the affirmation of defendants' attorney, asserting that there were places to which a safety harness could have been tied, carries no evidentiary weight.

The case is Berrios v. 735 Ave. of the Ams., LLC, NY Slip Op 01940 (1st Dept. 2011).


Tomorrow's issue is Labor Law.

Friday, March 25, 2011

Summary judgment.

Practice point: The dismissal of an action by summary judgment constitutes a determination on the merits.

Students should note that the doctrine of law of the case precludes the amending of plaintiff's reply, since the events underlying the proposed affirmative defense of fraud are the same as those which formed the basis for her legal malpractice claim.

The case is Callaghan v. Curtis, NY Slip Op 01785 (2d Dept. 2011).


Monday's issue is Labor Law.

Thursday, March 24, 2011

Family Law.

Practice point: In a matrimonial action, a postjudgment motion is not the proper vehicle for challenging the propriety of child support provisions in a stipulation of settlement incorporated but not merged into a judgment of divorce.

Students should note that the challenge must be made by the commencement of a separate plenary action to set aside the stipulation.

The case is Brody v. Brody, NY Slip Op 01782 (2d Dept. 2011).


Tomorrow's issue is summary judgment.

Wednesday, March 23, 2011

Settlements.

Practice point: A stipulation of settlement is a contract, enforceable according to its terms.

Students should note that, when a court enforces the stipulation, it must effectuate the parties' intent. As with any contract, where the terms are unambiguous, plain meaning controls.

The case is Alshawhati v. Zandani, NY Slip Op 01777 (2d Dept. 2011).


Tomorrow's issue is Family Law.

Tuesday, March 22, 2011

Venue.

Practice point: The motion to change venue was granted when none of the parties resided in the county at the time the action was commenced, pursuant to CPLR 503[a], and the summons did not state the basis for placing venue in the county.

Students should note that a demand to change venue based on the designation of an improper county, pursuant to CPLR 510[1], must be served with the answer or before the answer is served, pursuant to CPLR 511[a].

The case is Accardi v. Kaufmann, NY Slip Op 01775 (2d Dept. 2011).


Tomorrows issue is settlements.

Monday, March 21, 2011

Labor Law.

Practice point: Pursuant to § 241(6), property owners and contractors engaged in construction, excavation, and demolition must ensure that the work is conducted so as to provide reasonable and adequate protection and safety to persons employed therein.

Students should note that the statutory obligation is non-delegable.

The case is Reyes v. Arco Wentworth Mgt. Corp., NY Slip Op 01988 (2d Dept. 2011).


Tomorrow’s issue is venue.

Friday, March 18, 2011

Preclusion orders.

Practice point: A defendant's preclusion from introducing evidence at trial does not automatically entitle plaintiff to summary judgment.

Students should note that a preclusion order is unlike the striking of an answer, which effectively resolves a claim against the non-disclosing defendant.

The case is Mendoza v. Highpoint Assoc., IX, LLC, NY Slip Op 01719 (1st Dept. 2011).


Monday's issue is Labor Law.

Thursday, March 17, 2011

Landlord-Tenant Law.

Practice point: There is no right to succeed to an apartment, absent a showing that the unit was petitioner's primary residence for the required time period.

Students should note that, although petitioner offered evidence that he lived in the apartment, he did not offer evidence in proper form, such as a notice of change or income affidavits,
establishing that he lived there for two years prior to the tenant of record's death.

The case is Matter of Cognata v. New York State Div. of Hous. & Community Renewal, NY Slip Op 01709 (1st Dept. 2011).


Tomorrow's issue is preclusion orders.

Wednesday, March 16, 2011

Dog bites.

Practice point: Defendant-landlord established prima facie that it neither knew nor had reason to know that tenant's dog had vicious propensities. Although the building superintendent testified that other tenants were afraid of the pit bull, he also said that he had never received any complaints about the animal or saw it acting aggressively. He noted that, when he encountered the dog in the hallway, the dog passed him "at ease." 

Students should note that plaintiff's testimony that, on the day before the attack, the dog had growled at him does not support the inference that defendant knew or should have known of the dog's vicious propensities. Nor is it significant that the tenant allegedly tied the dog when it was in the apartment, absent evidence that he did so because he feared that the dog would attack a visitor.

The case is Orozco v. 725 S. Blvd., LLC, NY Slip Op 01706 (1st Dept. 2011).


Tomorrow's issue is Landlord-Tenant Law.

Tuesday, March 15, 2011

Assumption of the risk.

Practice point: Rollerblading on a public sidewalk does not constitute a sponsored sporting event or recreational activity for the purpose of applying the doctrine.

Students should note that the doctrine is limited to protecting sponsors of sporting and recreational activities from liability for damages arising from participation in those activities.

The case is Ashbourne v. City of New York, NY Slip Op 01687 (1st Dept. 2011).


Tomorrow's issue is dog bites.

Monday, March 14, 2011

Legal malpractice.

Practice point: Expert testimony is needed to establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the profession.

Students should note that attorneys are free to select among reasonable courses of action in prosecuting clients' cases without exposing themselves to liability for malpractice.

The case is Healy v. Finz & Finz, P.C., NY Slip Op 01616 (2d Dept. 2011).


Tomorrow's issue is assumption of the risk.

Friday, March 11, 2011

Fraudulent inducement and promissory fraud.

Practice point: General allegations that defendant entered into a contract while lacking the intent to perform it are insufficient to support the claim.

Students should note that if adverse information about defendant was readily verifiable through public records, there could be no justifiable reliance on defendant's misrepresentations.

The case is Fariello v. Checkmate Holdings, LLC, NY Slip Op 01592 (1st Dept. 2011).


Monday's issue is legal malpractice.

Thursday, March 10, 2011

Legal malpractice.

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

Students should note that, at the pleading stage, plaintiff is required only to plead facts from which it could reasonably be inferred that defendant's negligence caused a loss.

The case is Garnett v. Fox, Horan & Camerini, LLP, NY Slip Op 01589 (1st Dept. 2011).


Tomorrow's issue is fraudulent inducement and promissory fraud.

Wednesday, March 9, 2011

Service of process.

Practice point: Service on the corporate defendant was complete when the summons and complaint were personally served on an authorized agent of the Secretary of State, pursuant to Business Corporation Law § 306[b][1] and CPLR 311. 

Students should note that completion of service is not contingent upon the Secretary of State's actually mailing the papers. 

The case is Claudio v. Show Piers on the Hudson, NY Slip Op 01585 (1st Dept. 2011).


Tomorrow's issue is legal malpractice.

Tuesday, March 8, 2011

Employment Law.

Practice point: Isolated remarks and occasional episodes of harassment will not support a finding of a hostile or abusive work environment.

Students should note that a claim not raised before an administrative agency may not be raised for the first time in an article 78 proceeding.

The case is Ferrer v. New York State Div. of Human Rights, NY Slip Op 01583 (1st Dept. 2011).


Tomorrow's issue is service of process.

Monday, March 7, 2011

Administrative Law.

Practice point: Hearsay is admissible in an administrative hearing and, if sufficiently relevant and probative, hearsay alone may constitute the required substantial evidence.

Students should note that statements from witnesses absent from the hearing may form the sole basis for an agency's ultimate determination.

The case is Matter of Heisler v. Scappaticci, NY Slip Op 01472 (2d Dept. 2011).


Tomorrow’s issue is Employment Law.

Friday, March 4, 2011

Judiciary Law.

Practice point: A non-resident attorney admitted to practice in New York must maintain an office in the State.

Students should note that the failure to maintain the local office requires the striking of any pleading, without prejudice, served by the offending attorney.

The case is Empire Healthchoice Assur., Inc. v. Lester, NY Slip Op 01412 (1st Dept. 2011).


Monday's issue is Administrative Law.

Thursday, March 3, 2011

Administrative Law.

Practice point: Petitioner-student seeking reinstatement did not commence the proceeding within four months after notice of the denial of her final administrative appeal, and so the proceeding was time-barred, pursuant to CPLR 217[1].

Students should note that the fact that she was not given proper instructions for the exam in question is not an issue for judicial intervention.

The case is Kingston v. Sophie Davis School of Biomedical Educ., NY Slip Op 01406 (1st Dept. 2011).


Tomorrow's issue is Judiciary Law.

Wednesday, March 2, 2011

Evidence.

Practice point: Accident reports prepared during the course of regular business are admissible, pursuant to CPLR 4518(a).

Students should note that the reports are admissible even though the person who prepared them is available to testify.

The case is Rodriguez v. New York City Transit Authority, NY Slip Op 01258 (2d Dept. 2011).


Tomorrow’s issue is Administrative Law.

Tuesday, March 1, 2011

Slip and fall in a public park.

Practice point: Defendant did not meet its initial burden of a prima facie showing that it lacked notice of the alleged hazard, since the park supervisor did not testify as to the last time the restroom had been checked or cleaned. In addition, he had no personal knowledge of the restroom’s condition at the time of the accident or during the hours before.

Students should note that the failure to disclose witness affidavits prepared prior to the action's commencement was law office failure, and that plaintiff referred to both witnesses in the General Municipal Law § 50-h examination. Therefore, the testimony will not be precluded, as long as defendant has the chance to depose the witnesses before trial.

The case is Cruz v. City of New York, NY Slip Op 01113 (1st Dept. 2011).


Tomorrow’s issue is evidence.