Family Law.

Practice point: A child's derivative social security benefits may not serve as a credit against a parent’s child support obligation.

Practitioners should note that, although a dependent child's benefits are derived from the disabled parent's past employment, they are only intended to supplement existing resources.

Case: Matter of Jones v. Smith, NY Slip Op 01121 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Corporations.

Employment Law.

Practice point: A probationary employee may be terminated without a hearing and without a statement of reasons, absent a showing that the termination was for a constitutionally impermissible purpose, in bad faith or in violation of statutory or case law.

Practitioners should note that, in challenging the termination, a petitioner has the burden of demonstrating bad faith by competent evidence, not mere speculation.

Case: Matter of Bonanno v. Nassau County Civ. Serv. Commn., NY Slip Op 01114 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Family Law.

Employment Law.

Practice point: No tenured teacher may be disciplined or removed during a term of employment except for just cause, pursuant to Education Law § 3020.

Practitioners should note that the statute is the only means of disciplining a tenured teacher in New York State.

Case: Awaraka v. Board of Educ. of City of New York, NY Slip Op 00682 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Employment Law.

Family Law.

Practice point: It is fundamental public policy in New York that parents are responsible for their children's support until age 21, pursuant to Family Court Act 413.

Practitioners should note that, under the doctrine of constructive emancipation, a child of employable age who abandons a noncustodial parent by refusing all contact and visitation may forfeit entitlement to support. If the parent causes a breakdown in communication, or has made no serious effort to contact the child and exercise visitation rights, the child will not be deemed to have abandoned the parent.

Case: Matter of Gold v. Fisher, NY Slip Op 00685 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Vehicle and Traffic Law.

Practice point: A motor vehicle licensee must notify the Commissioner within 10 days of a change of residence,pursuant to § 505(5).

Practitioners should note that a party who fails to comply with this provision is estopped from challenging the propriety of service made to the previous address of record.

Case: Walker v. Reyes, NY Slip Op 00678 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Family Law.

Assault.

Practice point: Once intentional offensive contact has been established, the actor is liable for assault and not negligence, since there is no such thing as a negligent assault. There is a one-year statute of limitations, pursuant to CPLR 215[3].

Practitioners should note that plaintiff's argument that defendant used excessive force does not transform the action into one for negligence.

Case: Smiley v. North Gen. Hosp., NY Slip Op 00630 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Vehicle and Traffic Law.

Contracts.

Practice point: To establish the existence of an enforceable agreement, a plaintiff must establish an offer, acceptance, consideration, mutual assent and an intention to be bound, pursuant to 22 NY Jur 2d, Contracts § 9.

Practitioners should note that the requisite meeting of the minds must include agreement on all essential terms.

Case: Kowalchuk v. Stroup, NY Slip Op 01014 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Assault.

Corporations.

Practice point: A corporation continues to exist after dissolution for the winding up of its affairs, and a dissolved corporation may sue or be sued on its obligations, including contractual obligations and contingent claims, until its affairs are fully adjusted.

Practitioners should note that a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified.

Case: Cava Constr. Co., Inc. v. Gealtec Remodeling Corp., NY Slip Op 00324 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Contracts.

Motion practice.

Practice point: A motion to preclude testimony of plaintiff's treating physician will be denied, notwithstanding any failure or deficiency in providing disclosure pursuant to CPLR 3101(d)(1)(i), since that provision does not apply to treating physicians.

Practitioners should note that the testimony will be allowed even if the treating physician had not expressed an opinion regarding causation in a previously-exchanged medical report.

Case: Logan v. Roman, NY Slip Op 00509 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Corporations.

Sidewalks.

Practice point: Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land.

Practitioners should note, however, that liability may be imposed on the abutting landowner where the landowner either affirmatively created the dangerous condition, voluntarily but negligently made repairs to the sidewalk, created the dangerous condition through a special use of the sidewalk, or violated a statute or ordinance expressly imposing liability on the abutting landowner for a failure to maintain the sidewalk.

Case: James v. Blackmon, NY Slip Op 00507 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Adverse possession.

Practice point: To obtain title, a party must prove by clear and convincing evidence the common-law requirements: (1) that the possession was hostile and under claim of right; (2) that it was actual; (3) that it was open and notorious; (4) that it was exclusive; and (5) that it was continuous for the statutory period of 10 years.

Practitioners should note that, when the claim is not founded on a written instrument, the possessor must also establish that the disputed property was either "usually cultivated or improved" or "protected by a substantial inclosure," pursuant to RPAPL 522.

Case: Goldschmidt v. Ford St., LLC, NY Slip Op 00505 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Sidewalks.