Motion practice.

Practice point: In opposition to a motion for summary judgment, a plaintiff may not raise a theory of liability not pleaded in the notice of claim, complaint or bill of particulars.

Practitioners should note that a plaintiff will be precluded from offering trial evidence regarding a theory of liability not set forth in the notice of claim.

Case: Sutin v. Manhattan & Bronx Surface Tr. Operating Auth., NY Slip Op 07032 (1st Dept. 2008)

The opinion is here.

Court holiday.

Today is a New York State Courts holiday and so there is no post on New York Law Notes.

The Courts reopen tomorrow and there will be a new post, as there is every Court day.

In the meantime, I hope you will enjoy today's day-off!

Attorneys' fees.

Practice point: Attorneys' fees and disbursements are incidents of litigation, and a prevailing party may not collect unless the award is authorized by agreement between the parties, by statute, or by court rule.

Practitioners should note that, even if there is sufficient authority for an attorney’s fee, the award is premature as long as the matter is still before the court.

Case: Siamos v. 36-02 35th Ave. Dev., LLC, NY Slip Op 06978 (2d Dept. 2008)

The opinion is here.

Defective sidewalks.

Practice point: The City can establish its entitlement to judgment as a matter of law by offering a municipal code enforcement officer's deposition testimony that a search of the City's prior written notice logbook turned up no record of the required notice of the alleged defective sidewalk condition.

Practitioners should note that, after a repair, the recurrence of an alleged sidewalk defect does not abrogate the need for prior written notice.

Case: McCarthy v. City of White Plains, NY Slip Op 06969 (2d Dept. 2008)

The opinion is here.

Dog bites.

Practice point: A dog owner incurs no liability for injuries which allegedly were caused by a domestic animal with no known vicious propensities.

Practitioners should note that, on sufficient facts, there could be a cause of action for negligent supervision of an injured infant-plaintiff.

Case: Frank v. Eaton, NY Slip Op 06959 (2d Dept. 2008)

The opinion is here.

Legal malpractice.

Practice point: A cause of action does not sound in legal malpractice based on defendant's representation of plaintiff in a criminal action when the conviction has not been successfully challenged.

Practitioners should note that, even when an appeal is pending, pursuant to CPL 440, there is no cause of action unless plaintiff ultimately succeeds in having the underlying conviction vacated and the indictment dismissed.

Case: Daly v. Peace, NY Slip Op 06955 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: In light of the strong public policy favoring the resolution of cases on the merits, a court has the discretion to vacate a default arising from a defendant's delay in serving an answer, pursuant to CPLR 2004 and 3012(d), where there is a lack of prejudice to the plaintiff by the short delay, a lack of willfulness on the part of the defendant, and a meritorious defense.

Practitioners should note that the right to a direct appeal from an intermediate order terminates with the entry of a judgment.

Case: Cortlandt Healthcare, LLC v. Gantt, NY Slip Op 06953 (2d Dept. 2008)

The opinion is here.

Assumption of the risk.

Practice point: An infant plaintiff cannot be said, as a matter of law, to have assumed the risk of being injured by the defective condition of a pothole on a public street when he was riding merely for fun, and using the bicycle only as a means of transportation.

Practitioners should note that when a defendant fails to establish its prima facie entitlement to judgment as a matter of law, defendant’s motion will be denied regardless of the sufficiency of plaintiff’s opposition papers.

Case: Caraballo v. City of Yonkers, NY Slip Op 06949 (2d Dept. 2008)

The opinion is here.

Discovery.

Practice point: While Domestic Relations Law § 235(1) mandates that all papers filed in a matrimonial matter are confidential, a court may order the disclosure of otherwise confidential materials needed to defend against a clam of legal malpractice, including filed records which may provide evidence to rebut plaintiff's contentions of liability and the extent of plaintiff’s financial loss.

Practitioners should note, however, that the court will properly deny a motion to compel the disclosure of tax returns.

Case: Kodsi v. Gee, NY Slip Op 06938 (1st Dept. 2008)

The opinion is here.

Negligence.

Practice point: There is no physician-patient relationship where the examination is conducted solely for the purpose of rendering an evaluation as a litigation support service for an insurer, and a resulting cause of action sounds in negligence not medical malpractice, with a three-year statute of limitations.

Practitioners should note that any prior Second Department decisions which hold or indicate otherwise are no longer to be followed.

Case: Bazakos v. Lewis, NY Slip Op 07081 (2d Dept. 2008)

The opinion is here.

Disinterment.

Practice point: A body may be disinterred on consent of the cemetery corporation, the plot’s owners, and the surviving spouse, children, and parents of the deceased, pursuant to N-PCL § 1510[e]. However, in the absence of consent, a court may grant permission to disinter upon a showing of a good and substantial reason. A petitioner's demonstration that the deceased spouse’s wish was that they be buried together, and that petitioner cannot get appropriate assurances from the plot’s other owners, is enough.

Case: Pring v. Cemetery, NY Slip Op 06840 (2d Dept. 2008)

The opinion is here.