Defective products.
Practice point: Whether pleading in strict products liability, breach of warranty or negligence, a consumer-plaintiff has the burden of showing that the product's defect was a substantial factor in causing the alleged injury, and proof of injury, standing alone, is insufficient to prove that the product was defective for its intended use.
Case: Beckford v. Pantresse, Inc., NY Slip Op 04822 (2d Dept. 2008)
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June 24, 2008
Statute of Limitations.
Practice point: The tolling of the statute of limitations for the alleged disability of insanity may not extend the limitations period beyond ten years after the cause of action accrues, pursuant to CPLR 208.
Case: Santo B. v. Roman Catholic Archdiocese of N.Y., NY Slip Op 04821 (2d Dept. 2008)
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Practice point: The tolling of the statute of limitations for the alleged disability of insanity may not extend the limitations period beyond ten years after the cause of action accrues, pursuant to CPLR 208.
Case: Santo B. v. Roman Catholic Archdiocese of N.Y., NY Slip Op 04821 (2d Dept. 2008)
Click here for the uncorrected opinion.
June 23, 2008
Mortgage contingency clauses.
Practice point: Where a contract for the sale of real property contains a mortgage contingency clause, purchasers are entitled to recover their down payment if the mortgage is not approved, as long as they made a genuine effort to secure mortgage financing and acted in good faith.
Case: Astrada v. Archer, NY Slip Op 04819 (2d Dept. 2008)
Click here for the uncorrected opinion.
Practice point: Where a contract for the sale of real property contains a mortgage contingency clause, purchasers are entitled to recover their down payment if the mortgage is not approved, as long as they made a genuine effort to secure mortgage financing and acted in good faith.
Case: Astrada v. Archer, NY Slip Op 04819 (2d Dept. 2008)
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June 20, 2008
Retaining liens.
Practice point: If discharged for cause, an attorney is not entitled either to a retaining lien or compensation.
Case: Alami v. Volkswagen of America, NY Slip Op 04817 (2d Dept. 2008)
Click here for the uncorrected opinion.
Practice point: If discharged for cause, an attorney is not entitled either to a retaining lien or compensation.
Case: Alami v. Volkswagen of America, NY Slip Op 04817 (2d Dept. 2008)
Click here for the uncorrected opinion.
June 19, 2008
General Obligations Law § 395-b.
Practice point: There is no private right of action based on this statute which prohibits premises' owners or managers from knowingly permitting installation of a viewing device "for the purpose of surreptitiously observing the interior of any fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to guests or patrons in a motel, hotel or inn."
Case: Thomas v. Northeast Theatre Corp., NY Slip Op 04778 (1st Dept. 2008)
Click here for the uncorrected opinion.
Practice point: There is no private right of action based on this statute which prohibits premises' owners or managers from knowingly permitting installation of a viewing device "for the purpose of surreptitiously observing the interior of any fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to guests or patrons in a motel, hotel or inn."
Case: Thomas v. Northeast Theatre Corp., NY Slip Op 04778 (1st Dept. 2008)
Click here for the uncorrected opinion.
June 18, 2008
Written releases.
Practice point: General Obligations Law § 5-326 does not invalidate a release executed by a New York City Marathon runner, since the entry fee is for participation in the marathon, and is not an admission fee allowing the runner to use the City-owned public roadways over which the marathon is run.
Case: Brookner v. New York Roadrunners Club, NY Slip Op 04638 (2d Dept. 2008)
Click here for the uncorrected opinion.
Practice point: General Obligations Law § 5-326 does not invalidate a release executed by a New York City Marathon runner, since the entry fee is for participation in the marathon, and is not an admission fee allowing the runner to use the City-owned public roadways over which the marathon is run.
Case: Brookner v. New York Roadrunners Club, NY Slip Op 04638 (2d Dept. 2008)
Click here for the uncorrected opinion.
June 17, 2008
Prior written notice.
Practice point: A municipality with a prior written notice statute is not liabile for injuries caused by an improperly maintained roadway, absent the notice, unless (1) the municipality created the defect through an affirmative act of negligence, or (2) the municipality derived a special benefit from a special use of the roadway.
Case: Bogorova v. Village of Atlantic Beach, NY Slip Op 04637 (2d Dept. 2008)
Click here for the uncorrected opinion.
Practice point: A municipality with a prior written notice statute is not liabile for injuries caused by an improperly maintained roadway, absent the notice, unless (1) the municipality created the defect through an affirmative act of negligence, or (2) the municipality derived a special benefit from a special use of the roadway.
Case: Bogorova v. Village of Atlantic Beach, NY Slip Op 04637 (2d Dept. 2008)
Click here for the uncorrected opinion.
June 16, 2008
Labor Law.
Practice point: A plaintiff's rewiring of defendant's telephone system constitutes an altering of the premises, which falls within the ambit of construction work, pursuant to Labor Law § 241(6).
Case: Becker v. ADN Design Corp., NY Slip Op 04634 (2d Dept. 2008)
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Practice point: A plaintiff's rewiring of defendant's telephone system constitutes an altering of the premises, which falls within the ambit of construction work, pursuant to Labor Law § 241(6).
Case: Becker v. ADN Design Corp., NY Slip Op 04634 (2d Dept. 2008)
Click here for the uncorrected opinion.
June 13, 2008
Labor Law.
Practice point: The relationship necessary for Labor Law liability depends on whether the plaintiff was "permitted or suffered to work" on the premises, pursuant to Labor Law § 2[7], in fulfillment of an obligation, even if the benefit bestowed in exchange for the work was nonmonetary, pursuant to Labor Law § 2[5].
Case: Aloise v. Saulo, NY Slip Op 04629 (2d Dept. 2008)
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Practice point: The relationship necessary for Labor Law liability depends on whether the plaintiff was "permitted or suffered to work" on the premises, pursuant to Labor Law § 2[7], in fulfillment of an obligation, even if the benefit bestowed in exchange for the work was nonmonetary, pursuant to Labor Law § 2[5].
Case: Aloise v. Saulo, NY Slip Op 04629 (2d Dept. 2008)
Click here for the uncorrected opinion.
June 12, 2008
Administrative Law.
Practice point: At a disciplinary hearing on allegations of workplace violence, 911 recordings are admissable since they are not official records relating to the employee's arrest or prosecution, and thus are not subject to the sealing statute, pursuant to CPL 160.50.
Case: Dockery v. New York City Hous. Auth., NY Slip Op 04753 (1st Dept. 2008)
Click here for the uncorrected opinion.
Practice point: At a disciplinary hearing on allegations of workplace violence, 911 recordings are admissable since they are not official records relating to the employee's arrest or prosecution, and thus are not subject to the sealing statute, pursuant to CPL 160.50.
Case: Dockery v. New York City Hous. Auth., NY Slip Op 04753 (1st Dept. 2008)
Click here for the uncorrected opinion.
June 11, 2008
Service of process.
Practice point: A plaintiff can establish personal jurisdiction, pursuant to CPLR 308(2), when the process server delivers the summons with notice to a security guard at defendant's place of business, and also mails a copy to defendant's place of employment.
Case: Schorr v. Persaud, NY Slip Op 04440 (1st Dept. 2008)
Click here for the uncorrected opinion.
Practice point: A plaintiff can establish personal jurisdiction, pursuant to CPLR 308(2), when the process server delivers the summons with notice to a security guard at defendant's place of business, and also mails a copy to defendant's place of employment.
Case: Schorr v. Persaud, NY Slip Op 04440 (1st Dept. 2008)
Click here for the uncorrected opinion.
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