Non-compete agreements.
Practice point: Covenants not to compete will be enforced only if they are reasonably limited as to time, geographic area and scope; are necessary to protect the employer's legitimate interests; are not harmful to the public; and are otherwise not unduly burdensome.
Case: Ricca v. Ouzounian, NY Slip Op 04852 (2d Dept. 2008)
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July 10, 2008
Breach of contract.
Practice point: Absent a duty on which tort liability might be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty.
Case: Rakylar v. Washington Mutual Bank, NY Slip Op 04850 (2d Dept. 2008)
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Practice point: Absent a duty on which tort liability might be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty.
Case: Rakylar v. Washington Mutual Bank, NY Slip Op 04850 (2d Dept. 2008)
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July 9, 2008
School law.
Practice point: Schools are not strictly liable for every thoughtless or careless act by which one student may injure another. To recover for injuries caused by another student, a plaintiff must establish that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could reasonably have been anticipated.
Case: Paca v. City of New York, NY Slip Op 04848 (2d Dept. 2008)
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Practice point: Schools are not strictly liable for every thoughtless or careless act by which one student may injure another. To recover for injuries caused by another student, a plaintiff must establish that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could reasonably have been anticipated.
Case: Paca v. City of New York, NY Slip Op 04848 (2d Dept. 2008)
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July 8, 2008
Mechanic's liens.
Practice point: In order to maintain and enforce a mechanic's lien, a plaintiff must demonstrate that the defendant consented to the work performed on its property, pursuant to Lien Law § 3. The consent cannot be mere acquiescence and benefit, but must be some affirmative act or course of conduct establishing confirmation.
Case: Modern Era Construction, Inc. v. Shore Plaza, LLC, NY Slip Op 04847 (2d Dept. 2008)
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Practice point: In order to maintain and enforce a mechanic's lien, a plaintiff must demonstrate that the defendant consented to the work performed on its property, pursuant to Lien Law § 3. The consent cannot be mere acquiescence and benefit, but must be some affirmative act or course of conduct establishing confirmation.
Case: Modern Era Construction, Inc. v. Shore Plaza, LLC, NY Slip Op 04847 (2d Dept. 2008)
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July 7, 2008
Attorney's fees.
Practice point: Where a lease provision gives a landlord the right to recover attorney's fees, those fees must be reasonable, considering factors such as time spent on the case, the difficulties involved, the nature of the services rendered, the amount in dispute, the attorney's professional standing and the results obtained.
Case: Miller Realty Assoc. v. Amendola, NY Slip Op 04846 (2d Dept. 2008)
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Practice point: Where a lease provision gives a landlord the right to recover attorney's fees, those fees must be reasonable, considering factors such as time spent on the case, the difficulties involved, the nature of the services rendered, the amount in dispute, the attorney's professional standing and the results obtained.
Case: Miller Realty Assoc. v. Amendola, NY Slip Op 04846 (2d Dept. 2008)
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July 3, 2008
Contracts.
Practice point: While a contract may be voided and a party may recover damages when it establishes that it was compelled to agree because of a wrongful threat by the other party, there is no actionable duress where the alleged menace was to exercise a legal right.
Case: Madey v. Carmen, NY Slip Op 04844 (2d Dept. 2008)
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Practice point: While a contract may be voided and a party may recover damages when it establishes that it was compelled to agree because of a wrongful threat by the other party, there is no actionable duress where the alleged menace was to exercise a legal right.
Case: Madey v. Carmen, NY Slip Op 04844 (2d Dept. 2008)
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July 2, 2008
Discovery.
Practice point: Documents generated in connection with the performance of a medical or quality assurance review, pursuant to Education Law § 6527(3), or which are required by the department of health, pursuant to Public Health Law § 2805-l, are ordinarily not discoverable.
Case: Fray v. Fulton Commons Care Ctr., Inc., NY Slip Op 04831 (2d Dept. 2008)
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Practice point: Documents generated in connection with the performance of a medical or quality assurance review, pursuant to Education Law § 6527(3), or which are required by the department of health, pursuant to Public Health Law § 2805-l, are ordinarily not discoverable.
Case: Fray v. Fulton Commons Care Ctr., Inc., NY Slip Op 04831 (2d Dept. 2008)
Click here for the uncorrected opinion.
July 1, 2008
Home improvement contractors.
Practice point: Courts strictly construe the licensing requirements for home improvement contractors, pursuant to Administrative Code of the City of New York § 20-387(a), and public policy prohibits an unlicensed home improvement contractor from recovering either in contract or in quantum meruit.
Case: Metrobuild Assoc., Inc. v. Nahoum, NY Slip Op 04625 (1st Dept. 2008)
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Practice point: Courts strictly construe the licensing requirements for home improvement contractors, pursuant to Administrative Code of the City of New York § 20-387(a), and public policy prohibits an unlicensed home improvement contractor from recovering either in contract or in quantum meruit.
Case: Metrobuild Assoc., Inc. v. Nahoum, NY Slip Op 04625 (1st Dept. 2008)
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June 30, 2008
Actions in equity.
Practice point: In an action sounding in equity, the recovery of interest is within the court's discretion, pursuant to CPLR 5001[a].
Case: Dayan v. York, NY Slip Op 04827 (2d Dept. 2008)
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Practice point: In an action sounding in equity, the recovery of interest is within the court's discretion, pursuant to CPLR 5001[a].
Case: Dayan v. York, NY Slip Op 04827 (2d Dept. 2008)
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June 27, 2008
Preclusion of expert testimony.
Practice point: Preclusion for failure to comply with CPLR 3101(d) is improper unless there is evidence of intentional or willful failure to disclose and a showing of prejudice.
Case: Cruz v. Gustitos, NY Slip Op 04826 (2d Dept. 2008)
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Practice point: Preclusion for failure to comply with CPLR 3101(d) is improper unless there is evidence of intentional or willful failure to disclose and a showing of prejudice.
Case: Cruz v. Gustitos, NY Slip Op 04826 (2d Dept. 2008)
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June 26, 2008
Failure to communicate medical findings.
Practice point: A defendant-physician may be held liable for ordinary negligence for a failure to communicate significant medical findings to a patient.
Case: Bennett v. Long Is. Jewish Med. Ctr., NY Slip Op 04823 (2d Dept. 2008)
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Practice point: A defendant-physician may be held liable for ordinary negligence for a failure to communicate significant medical findings to a patient.
Case: Bennett v. Long Is. Jewish Med. Ctr., NY Slip Op 04823 (2d Dept. 2008)
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