Labor Law § 240(1)

Practice point: An object falling from a minuscule height is not the type of elevation-related injury that the statute was intended to protect against. Moreover, for the statute to be implicated, the object must have been in the process of being hoisted or secured when it fell because of inadequate safety devices.

Case: Cambry v. Lincoln Gardens, NY Slip Op 04047 (2d Dept. 2008)

Abuse of process.

Practice point: Abuse of process is an intentional tort and, therefore, is governed by a one-year statute of limitations, pursuant to CPLR 215.

Case: Benyo v. Sikorjak, NY Slip Op 04044 (2d Dept. 2008)

Bifurcation.

Practice point: Where there are complex issues of liability and damages, bifurcation is appropriate because it may help in reaching a fair and expeditious resolution, pursuant to 22 NYCRR 202.42[a].

Case: Sommer v. Pierre, NY Slip Op 04219 (1st Dept. 2008)

Charging liens.

Practice point: A charging lien is available whether an attorney is discharged or withdraws.

Case: Delaj v. Jameson, NY Slip Op 04203 (1st Dept. 2008)

General jurisdiction.

Practice point: Supreme Court may hear all causes of action unless its jurisdiction has been specifically proscribed.

Case: Colgate v. Broadwall Mgt. Corp., NY Slip Op 04190 (1st Dept. 2008)

Drug Testing of School Bus Drivers.

Practice point: A driver who refuses to take a drug test will be removed immediately from active duty for at least one year and will not return to duty until passing a drug test, pursuant to Administrative Code § 17-610[c].

Case: Matter of Gomez v. New York City Dept. of Educ., NY Slip Op 03956 (1st Dept. 2008)

Remedies.

Practice point: When a contract for the sale of real property contains a clause specifically setting forth the remedies available to the buyer if the seller is unable to satisfy a stated condition, fundamental rules of contract construction and enforcement require that the buyer's remedies are limited to those expressly provided in the sale contract.

Case: Gindi v Intertrade Internationale Ltd., NY Slip Op 03952 (1st Dept. 2008)

Facts: Paragraph 3 of the rider to the contract of sale provided, in pertinent part, that "[i]f for any reason, except for seller's willful default, the seller shall be unable to convey good and marketable title, subject to and in accordance with this Contract, then the sole obligation of the seller shall be to refund to the purchaser the deposit made hereunder and to reimburse the purchaser for the net cost of title examination." (emphasis added).

There was no evidence of a willful default on the part of defendant, and so plaintiff was not entitled to specific performance of the contract of sale.

Contribution.

Practice point: General Obligations Law § 15-108(c) bars a contribution claim by a settling defendant/third-party plaintiff against a nonsettling third-party defendant.

Case: Negron v. Topelson, NY Slip Op 03717 (1st Dept. 2008)

Ready, willing and able to buy.

Practice point: While a real estate broker will have earned a commission by producing a purchaser who is ready, willing and able to purchase at the seller's terms, the mere signing of a contract does not establish that the buyer is financially able to complete the transaction and meet the purchase price.

Case: F. Richard Wolff & Son, Inc. v. Tutora, NY Slip Op 03583 (2d Dept. 2008)

Experts' statements.

Practice point: An expert's statement put forward by a party in litigation constitutes an informal judicial admission which is admissible against, although not binding upon, the party that submitted it.

Case: Djetoumani v. Transit, Inc., NY Slip Op 03580 (2d Dept. 2008)

A party's failure to testify.

Practice point: A jury may, but is not required to, draw the strongest inference that the opposing evidence permits against a party who fails to testify at trial.

Case: Brown v. City of New York, NY Slip Op 03574 (2d Dept. 2008)