Friday, January 30, 2009

Attorneys' fees.

Practice point: Evidence in the form of detailed monthly invoices, together with affidavits indicating that the invoices were regularly and timely forwarded to and received by defendant, will establish plaintiff's compliance with the retainer agreement's requirement of regular billing.

Practitioners should note that plaintiff's procedural error in submitting an attorney's affirmation in support of its motion, as opposed to the affidavit as required by CPLR 2106, will be cured when the same affirmation is submitted in affidavit form in reply papers.

Case: Berkman Bottger & Rodd, LLP v. Moriarty, NY Slip Op 00311 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Service of process.

Thursday, January 29, 2009


Practice point: If there is an enforceable contract, plaintiff has no claim sounding in quantum meruit.

Practitioners should note that the receipt of a benefit, standing alone, is insufficient to show unjust enrichment.

Case: Empire State Fuel Corp. v. Warbasse-Cogeneration Tech. Partnership, L.P., NY Slip 00303 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Attorneys’ fees.

Wednesday, January 28, 2009

Tortious interference.

Practice point: Plaintiff's claim of tortious interference with prospective economic advantage is insufficient as a matter of law when the complaint fails to establish that defendant acted solely to harm plaintiff by unlawful means beyond mere self-interest or other economic considerations.

Practitioners should note that there is no tortious interference when plaintiff had a fee dispute with defendant, and defendant told a third party not to conduct business with plaintiff until the fee dispute was resolved.

Case: Phillips v. Carter, NY Slip Op 00261 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Tuesday, January 27, 2009

Res judicata.

Practice point: A valid final judgment bars future actions between the same parties on the same cause of action.

Practitioners should note that once a claim is brought to a conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based on different theories or if seeking a different remedy.

Case: Lazides v. P & G Enters., NY Slip Op 00194 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Tortious interference.

Monday, January 26, 2009


Practice point: In the exercise of its equitable powers, a court has the discretion to set aside a foreclosure sale where there is evidence of fraud, collusion, mistake or misconduct.

Practitioners should note that, absent such conduct, the inadequacy of a price is an insufficient reason to set aside the sale unless the price is unconscionably low.

Case: Astoria Fed. Sav. & Loan Assoc. v. Hartridge, NY Slip Op 00181 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Res judicata.

Friday, January 23, 2009


Practice point: An action seeking an accounting of a partnership on the basis that a former partner withdrew excess profits will be dismissed if the partnership’s tax returns indicate that the former partner had a positive capital account balance.

Practitioners should note that representations made in the partnership’s tax returns are binding.

Case: Peterson v. Neville, NY Slip Op 00124 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Foreclosures.

Thursday, January 22, 2009


Practice point: A federal felony conviction triggers automatic disbarment if the offense is essentially similar to a felony under New York law, pursuant to Judiciary Law § 90[4][e].

Practitioners should note that a conviction for bankruptcy fraud under 18 USC § 157, for knowingly and intentionally filing bankruptcy petitions in which an attorney fraudulently misrepresented and omitted material and substantial assets, is essentially similar to the New York felonies of offering a false instrument for filing in the first degree and perjury in the first degree, and, therefore, results in automatic disbarment.

Case: Matter of Yagman, NY Slip Op 00138 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Corporations.

Wednesday, January 21, 2009

Civil contempt.

Practice point: There is a civil contempt when an individual's rights have been harmed by a party's failure to obey a court order.

Practitioners should note that it must be established that a lawful court order was in effect, clearly expressing an unequivocal mandate. It must also appear with reasonable certainty that the alleged contemnor knew of the court’s mandate and, in fact, disobeyed it.

Case: Gryphon Dom. VI, LLC v. APP Intl. Fin. Co., NY Slip Op 00135 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Disbarment.

Tuesday, January 20, 2009

Employment Law.

Practice point: Defendant’s motion to compel arbitration will be denied when defendant failed to raise it as an affirmative defense, asserted counterclaims, made a dispositive motion and otherwise actively participated in litigation, including extensive disclosure and the filing of a note of issue.

Practitioners should note that, on these facts, it does not avail defendant that plaintiff did not timely respond to defendant's untimely arbitration demand.

Case: Ryan v. Kellogg Partners Institutional Servs., NY Slip Op 00113 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Civil contempt.

Monday, January 19, 2009


Practice point: While leave to amend a pleading will be liberally granted, pursuant to CPLR 3025[b]), leave will be denied when the proposed amendment is plainly insufficient as a matter of law or is totally devoid of merit.

Practitioners should note that, for pleading purposes, a demand for punitive damages does not constitute a separate cause of action.

Case: Rosenblum v. Frankl, NY Slip Op 10599 (2d Dept. 2008)

The opinion is here.

Tomorrow’s issue: Employment Law.

Friday, January 16, 2009

Duty of care.

Practice point: A property owner has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property, and to prevent them from harming or creating an unreasonable risk of harm to others.

Practitioners should note that this duty arises when the owner has the ability and opportunity to control such conduct, and is aware of the need to do so.

Case: Hillen v. Queens Long Is. Med. Group, P.C., NY Slip Op 10586 (2d Dept. 2008)

The opinion is here.

Monday’s issue: Pleadings.

Thursday, January 15, 2009

Construction Law.

Practice point: A contractor is justified in relying on the plans and specifications which it has contracted to follow.

Practitioners should note that the contractor who performs the work in accordance with the contract plans may not be held liable unless those plans are so patently defective as to put a contractor of ordinary prudence on notice that the project, if completed according to the plans, is potentially dangerous.

Case: Hartofil v. McCourt & Trudden Funeral Home, Inc., NY Slip Op 10585 (2d Dept. 2008)

The opinion is here.

Tomorrow’s issue: Duty of care.

Wednesday, January 14, 2009

Motion practice.

Practice point: Where a plaintiff fails to seek leave to enter a default judgment within one year after the default, the action is deemed abandoned, pursuant to CPLR 3215[c].

Practitioners should note that, to avoid dismissal of its complaint, a plaintiff must demonstrate both a reasonable excuse for the delay in seeking a default judgment and the existence of a meritorious cause of action.

Case: Butindaro v. Grinberg, NY Slip Op 10574 (2d Dept. 2008)

The opinion is here.

Tomorrow’s issue: Construction Law.

Tuesday, January 13, 2009

School Law.

Practice point: Service of a timely notice of claim is a condition precedent to a claim against a school district on an action alleging breach of contract or promissory estoppel based on a contract.

Practitioners should note that compliance with this condition precedent must be alleged in the complaint.

Case: Boakye-Yiadom v. Roosevelt Union Free School Dist., NY Slip Op 10572 (2d Dept. 2008)

The opinion is here.

Tomorrow’s issue: Motion practice.

Monday, January 12, 2009

The business judgment rule.

Practice point: The rule does not foreclose inquiry into the disinterested independence of the board members chosen to make a corporate decision on the board’s behalf.

Practitioners should note that the rule shields such directors only if they possess a disinterested independence and do not have dual relations that prevent an unprejudicial exercise of judgment.

Case: Allannic v. Levin, NY Slip Op 10212 (1st Dept. 2008)

The opinion is here.

Tomorrow's issue: School Law.

Friday, January 9, 2009

Motion practice.

Practice point: Sanctions may result from a motion to vacate a default judgment when, having had ample opportunity to avoid the judgment’s entry, movant failed to demonstrate either a reasonable excuse for the default or a meritorious defense to the counterclaims asserted.

Practitioners should note that a default is considered intentional when a party takes no steps to vacate it until after the judgment has been entered.

Case: Melnick v. Khoroushi, NY Slip Op 10206 (1st Dept. 2008)

The opinion is here.

Monday's issue: The business judgment rule.

Thursday, January 8, 2009

Labor Law.

Practice point: In a § 241(6) action, it must be demonstrated that plaintiff’s injuries were proximately caused by a violation of an Industrial Code regulation that is applicable to the circumstances of the accident.

Practitioners should note the inapplicability of 2 NYCRR 23-8.1(f)(2)(i), which deals with sudden acceleration and deceleration of loads during hoisting, when, according to plaintiff's deposition testimony, the accident occurred after the hoisting operations was completed, and when, based on plaintiff's description of the accident, compliance with the provision would not have prevented the beam from being inadvertently picked up or subsequently dropped onto him.

Case: Decaire v. New York City Health & Hosps. Corp., NY Slip Op 10115 (2d Dept. 2008)

The opinion is here.

Tomorrow’s issue: Motion practice.

Wednesday, January 7, 2009

Prejudgment interest.

Practice point: In an action to recover damages for breach of contract, the court may award a plaintiff prejudgment interest at the statutory rate of 9% per year, pursuant to CPLR 5001[a], 5004.

Practitioners should note that the interest will be computed from the earliest ascertainable date on which there was a cause of action, or from a single reasonable intermediate date, pursuant to CPLR 5001[b].

Case: Baer v. Anesthesia Assoc. of Mount Kisco, LLP, NY Slip Op 10110 (2d Dept. 2008)

The opinion is here.

Tomorrow's issue: Labor Law.

Tuesday, January 6, 2009

Law of the case.

Practice point: This doctrine is based on the fundamental principle that a judge may not review or overrule an order of another judge of coordinate jurisdiction in the same action or proceeding.

Practitioners should note that the principle does not apply where a prior order was issued by a Support Magistrate in a different proceeding.

Case: Barr v. Cannata, NY Slip Op 10109 (2d Dept. 2008)

The opinion is here.

Tomorrow’s issue: Prejudgment interest.

Monday, January 5, 2009


Practice point: There is no cause of action to recover for breach of the implied covenant of good faith and fair dealing where the alleged breach is intrinsically tied to damages alleged from a breach of the contract itself.

Practitioners should note that a liquidated damages clause must set forth the compensation for any loss or injury flowing from a breach.

Case: Deer Park Enters., LLC v. Ail Sys., Inc., NY Slip Op 09945 (2d Dept. 2008)

The opinion is here.

Tomorrow’s issue: Law of the case.

Friday, January 2, 2009

Promissory notes.

Practice point: In an action involving a promissory note, a plaintiff moving for summary judgment in lieu of a complaint, pursuant to CPLR 3213, establishes prima facie entitlement to judgment as a matter of law by submitting proof that defendant executed the note and defaulted in making the required payments.

Practitioners should note that the right of a direct appeal from an intermediate order terminates with the entry of a judgment in the action.

Case: Cutter Bayview Cleaners, Inc. v. Spotless Shirts, Inc., NY Slip Op 09943 (2d Dept. 2008)

The opinion is here.

Monday’s issue: Contracts.

Thursday, January 1, 2009

Happy New Year.

Courts are closed because of the New Year's Day holiday and so there is no post today. Thank you for your support throughout the year just past and best wishes for the year just beginning.

Courts reopen tomorrow and there will be a new post.

Tomorrow's issue: Promissory notes.