Motion practice.

Practice point: No appeal lies from an order denying a motion for leave to reargue.

Case: Levy v. Kung Sit Huie, NY Slip Op 06807 (2d Dept. 2008)

The opinion is here.

Jury verdicts.

Practice point: A jury’s finding that a party was negligent but that the negligence was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the negligence and causality are so interwoven as to make it logically impossible to find one without the other. If the verdict can be reconciled with any reasonable view of the evidence, it will be presumed that the jury adopted that view.

Case: Jaffier v. Wilson, NY Slip Op 06802 (2d Dept. 2008)

The opinion is here.

Discovery.

Practice point: A plaintiff waives an objection to the adequacy and timeliness of disclosure by filing a note of issue and certificate of readiness prior to moving for the imposition of a discovery sanction, pursuant to CPLR 3126.

Case: Iscowitz v. County of Suffolk, NY Slip Op 06801 (2d Dept. 2008)

The opinion is here.

Assumption of the risk.

Practice point: A voluntary participant in a sport assumes the known risks normally associated with it. However, participants do not assume the risks of reckless or intentional conduct or concealed or unreasonably increased risks. While being struck in the head by a baseball is a known risk inherent in the sport, a plaintiff's deposition testimony, along with affidavits of plaintiff’s teammates, may raise a triable issue of fact as to whether an alleged cracked batter's helmet unreasonably increased the risk of injury.

Case: Fithian v. Sag Harbor Union Free School Dist., NY Slip Op 06798 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction; accept all facts as alleged in the pleading to be true; accord the plaintiff the benefit of every possible inference; and determine only whether the facts as alleged fit within any cognizable legal theory. However, bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference.

Case: Breytman v. Olinville Realty, LLC, NY Slip Op 06787 (2d Dept. 2008)

The opinion is here.

Contracts.

Practice point: A contracting party’s exercise of a discretionary right may breach the implied obligation of good faith and fair dealing if it frustrates the basic purpose of the agreement and deprives the other party of its benefits under the contract.

Case: C & E 608 Fifth Ave. Holding, Inc. v. Swiss Ctr., Inc., NY Slip Op 06743 (1st Dept. 2008)

The opinion is here.

Labor Law.

Practice point: A motion to dismiss a cause of action under
§ 240(1) and § 241(6) must be denied when the record does not establish, as a matter of law, that plaintiff's acts were the sole proximate cause of the accident. The court will consider evidence that the unsecured ladder on which the injured worker was standing collapsed, and that no other safety devices were provided.

Case: Vargas v. NYCTA, NY Slip Op 06740 (1st Dept. 2008)

The opinion is here.

Notice of Claim.

Practice point: A court may grant a petition for leave to serve an amended notice of claim, pursuant to General Municipal Law § 50-e(6), if the original notice of claim was not sworn to by or on behalf of the petitioner, pursuant to General Municipal Law § 50-e[2].

Case: Figgs v. County of Suffolk, NY Slip Op 06706 (2d Dept. 2008)

The opinion is here.

Indemnification.

Practice point: A party is entitled to contractual indemnification when the intention to indemnify is clearly implied from the language and purposes of the entire agreement and the surrounding circumstances.

Case: Torres v. LPE Land Dev. & Constr., Inc., NY Slip Op 06702 (2d Dept. 2008)

The opinion is here.

Products liability.

Practice point: For a judgment as a matter of law in an action to recover for injuries allegedly caused by a defective product, a defendant must establish that the product performed as intended, or that plaintiff’s injuries likely were caused by something not attributable to a defect in the product’s design or manufacture.

Case: Calandra v. Crane Plumbing, NY Slip Op 06692 (2d Dept. 2008)

The opinion is here.

Employment Law.

Practice point: It is settled that, in deciding the issue of special employment, a putative special employer’s title, e.g., a managing agent, is not controlling. Instead, courts will look to the actual working relationship between the employer and the employee.

Case: Bautista v. Frankel Realty, Inc., NY Slip Op 06685 (1st Dept. 2008)

The opinion is here.