Motion practice.

Practice point: If a matter is stricken from the trial calendar and designated as inactive, but not dismissed, a plaintiff seeking to restore is not required to submit an affidavit of merit or an explanation as to why the case was removed from active status.

Case: Ross v. Brookdale Univ. Hosp. & Med. Ctr., NY Slip Op 06597 (2d Dept. 2008)

The opinion is here.

Civil contempt.

Practice point: To sustain a determination of civil contempt, a court must find that the alleged contemnor violated the court’s lawful and express order, and that, as a result, a party to the litigation was prejudiced, pursuant to Judiciary Law § 753[A][3].

Case: Village of Plandome Manor v. Ioannou, NY Slip Op 06594 (2d Dept. 2008)

The opinion is here.

Statute of limitations.

Practice point: The statute of limitations for tort actions against the MTA is one year and 30 days, pursuant to Public Authorities Law § 1276[1],[2]. For negligence actions against the Transit Authority, the statute is one year and 90 days, pursuant to Public Authorities Law § 1212[3].

Case: Sullivan v. Atlantic Paratransit of N.Y.C., Inc., NY Slip Op 05920 (2d Dept. 2008)

The opinion is here.

Quiet enjoyment.

Practice point: A plaintiff may properly plead a cause of action for breach of the covenant of quiet enjoyment by alleging a constructive eviction, namely, because the cooperative failed to make necessary repairs, the conditions in plaintiff’s home compelled plaintiff to move out.

Case: Granirer v. Bakery, Inc., NY Slip Op 06582 (1st Dept. 2008)

The opinion is here.

Summary judgment.

Practice point: A court may set the time within which a party may move for summary judgment, pursuant to CPLR 3212(a), through a so-ordered stipulation.

Case: Ford v. City of New York, NY Slip Op 06579 (1st Dept. 2008)

The opinion is here.

Hearsay.

Practice point: Even if unrelated to diagnosis or treatment, a hearsay entry in a hospital record may be admissible at trial if the entry is inconsistent with a party’s position.

Case: Coker v. Bakkal Foods, Inc., NY Slip Op 05876 (2d Dept. 2008)

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Labor Law.

Practice point: A plaintiff’s failure to identify, in the Complaint or Bill of Particulars, an alleged Code violation is not necessarily fatal to a Labor Law § 241(6) cause of action.

Case: Galarraga v. City of New York, NY Slip Op 06545 (2d Dept. 2008)

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Employment Law.

Practice point: In stating a claim of vicarious liability, a plaintiff must demonstrate that the employer had knowledge of, and acquiesced in or condoned, the discriminatory conduct. An employer’s failure to act is the same as affirmative conduct.

Case: Bianco v. Flushing Hospital Med. Ctr., NY Slip Op 06542 (2d Dept. 2008)

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Fee disputes.

Practice point: The Fee Dispute Resolution Program does not apply when the amount in dispute exceeds $50,000, pursuant to 22 NYCRR 137.1[b][2].

Case: Goldman & Greenbaum, P.C. v. Filippatos, NY Slip Op 05749 (1st Dept. 2008)

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Filing retainer statements.

Practice point: An attorney’s belated filing of a retainer statement, pursuant to 22 NYCRR § 603.7(a)(3), is insufficient to preserve the right to recover legal fees.

Case: Fishkin v. Taras, NY Slip Op 06505 (1st Dept. 2008)

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Untimely pleadings.

Practice point: The City's excuse for its late answer, namely, that it receives thousands of summonses each month, is insufficient to compel plaintiff to accept the pleading, pursuant to CPLR 3012(d).

Case: Holloman v. City of New York, NY Slip Op 05480 (2d Dept. 2008)

Click here for the opinion.