Gift certificates.

Practice point: General Business Law § 396-i regulates gift certificates and gift cards, and, pursuant to i[3], requires that the terms and conditions shall be clearly and conspicuously stated thereon, including whether any fees are assessed against the balance.

Practitioners should note that while the statute does not expressly provide for a private right of action, there is nothing in the statutory language to indicate that the Legislature intended to abrogate any common-law remedy arising from alleged deceptive or improper practices concerning gift certificates or cards. In addition, a § 349 cause of action may be maintained as to all deceptive acts or practices declared to be unlawful, regardless of any other State statute.

Case: Llanos v. Shell Oil Co., NY Slip Op 08099 (2d Dept. 2008)

The opinion is here.

Commencing an action.

Practice point: The commencement of an action by plaintiff’s filing a notice of petition and a petition with a verified complaint is jurisdictionally sufficient.

Practitioners should note that plaintiff's confusion between the form of an action and the form of a special proceeding is not a ground for dismissal.

Case: Ling Fei Sun v. City of New York, NY Slip Op 08098 (2d Dept. 2008)

The opinion is here.

Municipal liability.

Practice point: A municipality owes to the public the absolute duty of keeping its streets in a reasonably safe condition.

Practitioners should note that, when it comes to traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision, and liability requires proof that the State's traffic design plan evolved without adequate study or lacked reasonable basis.

Case: Fan Guan v. State of New York, NY Slip Op 08089 (2d Dept. 2008)

The opinion is here.

Medical malpractice.

Practice point: To establish a prima facie case on liability, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred; (2) that the defendant breached that standard of care; and (3) that the breach was the proximate cause of plaintiff’s injury.

Practitioners should note that expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause.

Case: Deadwyler v. North Shore Univ. Hosp. at Plainview, NY Slip Op 08087 (2d Dept. 2008)

The opinion is here.

Collateral estoppel.

Practice point: A party will be estopped from relitigating an issue which was clearly raised in a prior action and which was decided against that party.

Practitioners should note that, in order to invoke the doctrine, the identical issue must necessarily have been decided in the prior action and it must be decisive of the present action. In addition, the party to be precluded must have had a full and fair opportunity to contest the prior determination.

Case: Comprehensive Med. Care of N.Y., P.C. v. Hausknecht, NY Slip Op 08084 (2d Dept. 2008)

The opinion is here.

Exposure to toxic substances.

Practice point: To maintain a cause of action for negligent infliction of emotional distress following exposure to a toxic substance, a plaintiff must establish both that there was exposure to a disease-causing agent and that there is a ‘rational basis' for plaintiff’s fear of contracting a disease.

Practitioners should note that the Court has construed ‘rational basis’ to mean the clinically-demonstrable presence of a toxin in plaintiff's body, or some other indication of a toxin-induced disease.

Case: Cleary v. Wallace Oil Co., Inc., NY Slip Op 08083 (2d Dept. 2008)

The opinion is here.

General Obligations Law.

Practice point: An agreement to exempt a lessor from its own negligence is void and unenforceable, pursuant to § 5-321.

Practitioners should note that where the liability is to a third party, the statute does not preclude enforcement of an indemnification provision in a commercial lease negotiated at arm's length between two sophisticated parties, when coupled with an insurance procurement requirement.

Case: Castano v. Zee-Jay Realty Co., NY Slip Op 08081 (2d Dept. 2008)

The opinion is here.

Notice of Claim.

Practice point: Leave to file a late Notice of Claim will be denied when, after a seven-month delay, petitioner fails to identify any documents, either from the police investigation or from the criminal proceedings, which would assist respondent in investigating a claim of negligence.

Pratcitioners should note that the fact that there was media coverage of the claim-related incident does not establish that respondent should have known about the incident or should have anticipated a claim of negligence.

Case: Matter of Bailey v. City of New York Hous. Auth., NY Slip Op 08025 (1st Dept. 2008)

The opinion is here.

Education Law.

Practice point: A petitioner's challenge to the termination of probationary employment under a physical education license will be dismissed if petitioner fails to establish that the termination was for a constitutionally impermissible purpose, in violation of a statute, or otherwise done in bad faith.

Practitioners should note that, even if petitioner were not given the 60-day statutory notice, which, pursuant to Education Law
§ 2573[1][a]), would require one day's pay for each day the notice is late, petitioner is not entitled to the payment when, on termination, petitioner immediately resumed duties at the same school and at the same rate of pay under the common branch license under which petitioner was fully tenured.

Case: Curcio v. New York City Dept. of Educ., NY Slip Op 08020 (1st Dept. 2008)

The opinion is here.

Municipal liability.

Practice point: The City is not a proper party to an action where plaintiff sustained injuries as a result of tripping and falling on public school grounds.

Practitioners should note that, although the 2002 amendments to the Education Law (L 2002, ch 91) give the mayor greater control over education and limit the Department of Education’s powers, they do not establish a basis to hold the City liable for this plaintiff’s personal injuries.

Case: Bailey v. City of New York, NY Slip Op 08003 (1st Dept. 2008)

The opinion is here.

Court of Claims Act.

Practice point: An otherwise timely claim will be dismissed if it is verified only by plaintiff’s attorney and thus is noncompliant with the verification requirement of § 8-b(4).

Practitioners should note that CPLR 205(a), which allows re-commencement of an action which was terminated not on the merits within six months of dismissal, does not apply to claims under § 8-b, the requirements of which must be strictly construed and the terms of which make no reference to the CPLR.

Case: Taylor v. State of New York, NY Slip Op 07976 (1st Dept. 2008)

The opinion is here.

You can find the statutory language here.