Thursday, June 30, 2011


Practice point: Pursuant to CPLR 3211(a)(4), an action might be dismissed based on another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same.

Students should note that the critical element is that both suits arise out of the same subject matter or the same series of alleged wrongs.

DAIJ, Inc. v. Roth, NY Slip Op 05446 (2d Dept. 2011).

Tomorrow’s issue is Vehicle and Traffic Law.

Wednesday, June 29, 2011

Reformation of a contract.

Practice point: For a party to be entitled to reformation on the ground of mutual mistake, it must be material, that, is, it must involve a fundamental assumption of the contract.

Students should note that a party need not establish that the parties entered into the contract because of the mistake, only that it vitally affects a fact or facts on the basis of which the parties contracted.

Asset Mgt & Capital Co., Inc. v. Nugent, NY Slip Op 05438 (2d Dept. 2011).

Tomorrow’s issue is dismissals.

Tuesday, June 28, 2011

In pari delicto.

Practice point: The doctrine bars a party that has been injured as a result of its own intentional wrongdoing from recovering from another party whose equal or lesser fault contributed to the loss.

Students should note that the doctrine mandates that the courts will not intercede to resolve a dispute between two wrongdoers.

Rosenbach v. Diversified Group, Inc., NY Slip Op 05345 (1st Dept. 2011).

Tomorrow’s issue is reformation of a contract.

Monday, June 27, 2011

Vacating a default.

Practice point: An affidavit of merit is required in support of the motion, pursuant to CPLR 5015(a)(1).

Students should note that if the motion is denied for want of the affidavit, a second motion cannot be made on the same grounds as the first.

47 Thames Realty, LLC v. Robinson, NY Slip Op 05225 (2d Dept. 2011).

Tomorrow's issue is in pari delicto.

Friday, June 24, 2011

Account stated.

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

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

Fleetwood Agency, Inc. v. Verde Elec. Corp., NY Slip Op 05224 (2d Dept. 2011).

Monday's issue is vacating a default.

Thursday, June 23, 2011

Statute of frauds.

Practice point: A quantum meruit recovery is not precluded if there is a sufficient memorandum to evidence the fact that plaintiff employed defendant to render the alleged services.

Students should note that neither a nondescript "thank you" note nor a check designated as a gift qualifies.

At Last Naturals, Inc. v. Feiner, NY Slip Op 05211 (2d Dept. 2011).

Tomorrow's issue is account stated.

Wednesday, June 22, 2011

Contempt powers.

Practice point: Supreme Court is vested with authority to adjudicate a party in contempt, pursuant to Judiciary Law 752[A].

Students should note, however, that a party's resorting to a contempt motion on a routine discovery matter, absent application for a remedy under CPLR 3126, is improper.

Lopez v. New York City Transit Authority, NY Slip Op 05182 (1st Dept. 2011).

Tomorrow's issue is statute of frauds.

Tuesday, June 21, 2011

Student fights.

Practice point: The school has no duty to notify a parent about a fight between two students when the school has already affirmatively addressed the misconduct.

Students should note that the school normally has no duty of care to a student injured off school grounds.

Stephenson v. City of New York, NY Slip Op 05178 (1st Dept. 2011).

Tomorrow's issue is contempt powers.

Monday, June 20, 2011

Punitive damages.

Practice point: They are available only when defendant’s behavior evinces a high degree of moral turpitude, and is so wantonly dishonest as to imply a criminal indifference to civil obligations.

Students should note that they are not available in an action sounding in ordinary fraud and deceit.

Hoeffner v. Orrick, Herrington & Sutcliffe LLP, NY Slip Op 04760 (1st Dept. 2011).

Tomorrow’s issue is student fights.

Friday, June 17, 2011

Notice of claim.

Practice point: The requirement of filing a notice within 90 days as a condition precedent to bringing suit against a community college of the City University of New York (CUNY) applies to all claims against the college, not just those sounding in tort and wrongful death.

Students should note that the court cannot extend the filing time beyond the statutory limitation.

McKie v. Laguardia Community College, NY Slip Op 04755 (1st Dept. 2011).

Monday’s issue is punitive damages.

Thursday, June 16, 2011

Employment reviews.

Practice point: A breach of confidentiality claim cannot be based on a review-related discussion of the employee’s test scores.

Students should note that the common interest privilege which attaches to a review-related discussion of the employee’s poor performance cannot be defeated by the employee’s conclusory allegations of malice.

Panghat v. New York Downtown Hospital, NY Slip Op 04818 (1st Dept. 2011).

Tomorrow’s issue is notice of claim.

Wednesday, June 15, 2011

Notice of entry.

Practice point: The New York State Court Electronic Filing (NYSCEF) site’s transmission of the notice to email service addresses does not constitute service, pursuant to 22 NYCRR 205.b[h][3].

Students should note that one party must serve the other with notification of the entry, expressly stating that the transmittal constitutes notice.

Fazio v. Costco Wholesale Corp., NY Slip Op 04740 (1st Dept. 2011).

Tomorrow’s issue is employment reviews.

Tuesday, June 14, 2011

Post-judgment interest.

Practice point: When found liable in a tort action, the Port Authority is treated as a private corporation, pursuant to McKinney's Unconsolidated Laws of NY § 7106, and the fixed rate of 9% applies, pursuant to CPLR 5004.

Students should note that, pursuant to § 2501, public corporations are entitled to specialized rate provisions.

Nash v. Port Auth. of N.Y. & N.J., NY Slip Op 04597 (1st Dept. 2011).

Tomorrow's issue is notice of entry.

Monday, June 13, 2011

Legal malpractice.

Practice point: If the underlying action was time-barred, as a matter of law, the attorney's negligence was not a proximate cause of the alleged injuries, and the action will be dismissed.

Students should note that plaintiff must plead and prove actual and ascertainable damages as a result of the attorney's negligence.

Dempster v. Liotti, NY Slip Op 04408 (2d Dept. 2011).

Tomorrow's issue is post-judgment interest.

Friday, June 10, 2011

Abuse of process.

Practice point: The claim must allege that process was improperly used for a purpose other than lawfully authorized.

Students should note that malicious motive alone does not give rise to the cause of action.

Cozzani v. County of Suffolk, NY Slip Op 04407 (2d Dept. 2011).

Monday's issue is legal malpractice.

Thursday, June 9, 2011

Orders to show cause.

Practice point: Pursuant to CPLR 2214(a), an order to show cause must state the relief demanded and the grounds therefor.

Students should note that, based on a general prayer, the court may grant relief not specifically requested, to the extent that it is warranted by facts plainly appearing on the papers.

Carter v. Johnson, NY Slip Op 04403 (2d Dept. 2011).

Tomorrow's issue is abuse of process.

Wednesday, June 8, 2011


Practice point: A threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party.

Students should note that a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.

Bono v. Halben's Tire City, Inc., NY Slip Op 04401 (2d Dept. 2011).

Tomorrow's issue is orders to show cause.

Tuesday, June 7, 2011


Practice point: In order to commence the action, plaintiff must have a legal or equitable interest in the mortgage.

Students should note that, if plaintiff can establish its status as assignee, the recording of a written assignment after the commencement of the action does not defeat standing.

Aurora Loan Servs., LLC v. Weisblum, NY Slip Op 04184 (2d Dept. 2011).

Tomorrow's issue is torts.

Monday, June 6, 2011

Notice of claim.

Practice point: The notice must set forth, among other things, the time and place of the accident, and the manner in which it occurred, pursuant to General Municipal Law § 50-e[2].

Students should note that in considering the sufficiency of the notice, the court may look beyond the claim itself to evidence adduced at the § 50-h hearing.

Portillo v. New York City Tr. Auth., NY Slip Op 03974 (1st Dept. 2011).

Tomorrow's issue is foreclosures.

Friday, June 3, 2011

Notice of a defective or unsafe condition.

Practice point: Defendant's summary judgment motion was granted when the evidence established that the desk drawer had never fallen off before, and there was no suggestion that other desks had defectively secured tracks.

Students should note that the fact that, after the accident, the drawer's track was hanging off does not establish notice, as the track mounting's condition was visible only after the drawer fell.

Fernandez v. City of New York, NY Slip Op 04111 (1st Dept. 2011).

Monday's issue is notice of claim.

Thursday, June 2, 2011

Summary judgment motions in lieu of complaint.

Practice point: Plaintiff's motion will be granted if it establishes the existence of an agreement that was expressly an independent, absolute and unconditional obligation to pay money only, and by submitting an affidavit of nonpayment, pursuant to CPLR 3213.

Students should note that the motion will be granted even though the obligation was referenced by underlying agreements.

Nordea Bank Finland PLC v. Holten, NY Slip Op 04102 (1st Dept. 2011).

Tomorrow's issue is notice of a defective or unsafe condition.

Wednesday, June 1, 2011

Sidewalk defects.

Practice point: Demonstration of prior written notice of the defect is a condition precedent to maintaining an action against the City, pursuant to Administrative Code of City of NY § 7-201[c][2].

Students should note that summary judgment will be denied when there is a dispute as to whether the Big Apple Pothole map portrays the location and nature of the defect so as to bring the condition to the City's attention.

Sondervan v. City of New York, NY Slip Op 04295 (1st Dept. 2011).

Tomorrow's issue is summary judgment motions in lieu of complaint.