Practice point: To establish liability under § 241(6), a plaintiff must demonstrate that defendant's violation of a specific rule or regulation was a proximate cause of the accident.
Practitioners should note that the violation does not establish defendant's liability as a matter of law, but constitutes evidence of negligence and thereby reserves, for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.
Case: Seaman v. Bellmore Fire Dist., NY Slip Op01099 (2d Dept. 2009)
The opinion is here.
Monday’s issue: Discovery
February 27, 2009
February 26, 2009
Legal malpractice.
Practice point: To establish a claim to recover damages, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages.
Practitioners should note that attorneys are free to select among reasonable courses of action in prosecuting a client’s case without thereby exposing themselves to liability for malpractice.
Case: Noone v. Stieglitz, NY Slip Op 01093 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Labor Law.
Practitioners should note that attorneys are free to select among reasonable courses of action in prosecuting a client’s case without thereby exposing themselves to liability for malpractice.
Case: Noone v. Stieglitz, NY Slip Op 01093 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Labor Law.
February 25, 2009
Corporations.
Practice point: A party seeking to pierce the corporate veil must establish (1) that the owners exercised complete domination of the corporation in respect to the transaction attacked, and (2) that this domination was used to commit a fraud or wrong resulting in plaintiff's injury.
Practitioners should note that it also must be established that the defendants abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff such that a court of equity should intervene.
Case: Lawlor v. Hoffman, NY Slip Op 01088 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Legal malpractice.
Practitioners should note that it also must be established that the defendants abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff such that a court of equity should intervene.
Case: Lawlor v. Hoffman, NY Slip Op 01088 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Legal malpractice.
February 24, 2009
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.
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.
February 23, 2009
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.
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.
February 20, 2009
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.
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.
February 19, 2009
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.
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.
February 18, 2009
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.
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.
February 17, 2009
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.
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.
February 16, 2009
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.
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.
February 13, 2009
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.
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.
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