22 NYCRR 130-1.1[c]

Practice point: Conduct is sanctionable as frivolous if it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.

Case: Newman v. Berkowitz, NY Slip Op 03493 (1st Dept. 2008)

Labor Law § 740

Practice point: This whistleblower's statute prohibits an employer from retaliating against an employee who discloses to a supervisor an employer's activity, policy or practice which is in violation of law, rule or regulation and presents a substantial and specific danger to the public health or safety. To sustain this cause of action, plaintiff must offer proof of an actual violation, and not merely the reasonable belief of a possible violation.

Case: Berde v. North Shore-Long Island Jewish Health System, Inc., NY Slip Op 03409 (2d Dept. 2008)

General Municipal Law § 50-i

Practice point: While infancy automatically tolls the one-year and 90-day statute of limitations for commencing an action against a municipality, infancy alone does not compel the granting of a motion for leave to serve a late notice of claim when the delay is not the product of the infancy.

Case: Arias v. Kings County Hospital Center, NY Slip Op 03407 (2d Dept. 2008)

Custody rights.

Practice point: As between a parent and a nonparent, the parent has the superior custody right which cannot be denied unless the nonparent establishes that there is an extraordinary circumstance such as surrender, abandonment, persistent neglect, unfitness, or involuntary disruption of custody over an extended period of time.

Case: Cockrell v. Burke, NY Slip Op 03452 (2d Dept. 2008)

Snowstorms.

Practice point: Property owners have no obligation to maintain a constantly dry floor during a snowstorm, and are not required to cover the entire floor with mats.

Case: Meza v. Consolidated Edison, NY Slip Op 03324 (1st Dept. 2008)

Account stated.

Practice point: The fact that an attorney's invoices are insufficiently itemized does not in itself prevent an account stated from being created.

Case: Zanini v. Schvimmer, NY Slip Op 03317 (1st Dept. 2008)

CPLR 2221[e][2], [3]

Practice point: A motion for leave to renew must be supported by facts, not offered on the prior motion, that would change the prior determination. In addition, the motion must contain a reasonable justification for the failure to present the facts on the prior motion.

Case: Gale v. Lotito, NY Slip Op 03457 (2d Dept. 2008)

Education Law § 3813

Practice point: A notice of claim against a school district must satisfy the requirements of General Municipal Law § 50-e, including statements of the nature of the claim and the alleged damages or injuries.

Case: Melissa G. v. North Babylon Union Free School District, NY Slip Op 03456 (2d Dept. 2008)

Contract law.

Practice point: In adjudicating the rights of parties to a contract, courts may not fashion a new contract under the guise of contract construction. Nor may they imply a condition which the parties chose not to put in their contract.

Case: Camaiore v. Farance, NY Slip Op 03390 (1st Dept. 2008)

How far can the Appellate Division reach in its review?

Practice point: The Appellate Division's reach in reviewing the evidence in a nonjury trial is as broad as that of the trial court. However, a fact-finding court's conclusions will not be disturbed on appeal unless they obviously could not have been reached under any fair interpretation of the evidence, especially when the findings rest in large measure on witness credibility.

Case: Kalt v. Ritman, NY Slip Op 03387 (1st Dept. 2008)

CPLR 4401-a

Practice point: A cause of action for medical malpractice based on lack of informed consent must be dismissed if plaintiff does not offer expert testimony establishing that the disclosed information was qualitatively insufficient.

Case: Rodriguez v. New York City Health & Hospitals Corp., NY Slip Op 03383 (1st Dept. 2008)