Motion practice.

Practice point: Plaintiff’s motion to vacate a conditional preclusion order will be denied after plaintiff failed to comply with three discovery orders, and did not offer a reasonable excuse for those failures or set forth the merits of the claim.

Practitioners should note that since counsel was present when the order was issued, plaintiff was on notice of it and is bound by its provisions.

Case: Ensley v. Snapper, Inc., NY Slip Op 03594 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

You will find another instructive case here.

Damages.

Practice point: If plaintiff wins his claim that he was induced by material misrepresentations to stay at defendant-law firm, he can get the difference between the signing bonus offered by the other firm and what he got from defendant for agreeing to stay.

Practitioners should note that plaintiff’s damages may not include anything based on employment going forward with the other firm, since that would be speculative.

Case: Hoeffner v. Orrick, Herrington & Sutcliffe LLP, NY Slip Op 03451 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

You will find another instructive case here.

Disabilities Law.

Practice point: Under New York and federal law, petitioner must prove a prima facie claim of discrimination, namely, that she has a disability; was job-qualified; and suffered an adverse employment action or was terminated under circumstances giving rise to an inference of discrimination.

Practitioners should note that the burden then shifts to the employer to rebut the presumption of discrimination by offering legitimate, independent and nondiscriminatory reasons for the employer’s decision. Petitioner is still entitled to prove that the employer’s stated reasons were merely a pretext for discrimination.

Case: Cuccia v. Martinez & Ritorto, PC, NY Slip Op 03444 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Damages.

You will find another instructive case here.

Law of the case.

Practice point: The doctrine is not implicated when the court alters its own ruling and not a ruling by another court of coordinate jurisdiction.

Practitioners should note that every court retains continuing jurisdiction to reconsider its prior interlocutory orders, and may do so regardless of statutory time limits on motions to reargue.

Case: Kleinser v. Astarita, NY Slip 03401 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Disabilities Law.

You will find another instructive case here.

Comparative Negligence.

Practice point: A driver who lawfully enters an intersection may be partially at fault for an accident if the driver failed to use reasonable care to avoid a collision with another vehicle.

Practitioners should note that, even if a police officer went past a stop sign without activating the emergency lights or siren, it may still be found that, as a matter of law, the other driver’s negligence contributed to the accident.

Case: Franco v. Rizzo, NY Slip Op 03131 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Law of the case.

You will find another instructive case here.

Estates Law.

Practice point: When plaintiff alleges that defendant fraudulently concealed assets from the public administrator, res judicata does not prevent the recovery of assets improperly omitted from the estate settlement.

Practitioners should note that a Surrogate's Court decree settling an account does have conclusive effect on previously undisclosed and undiscovered assets.

Case: Lambert v. Sklar, NY Slip Op 03486 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Comparative negligence.

For another instructive case, click here.

Please look at our other blog.

Today marks the first post on a new blog, GETTING DOWN TO CASES. Characterized as a real people's court, with real disputes and real outcomes, the blog highlights cases with widespread applicability for practioners and laypersons alike.

Instead of offering practice points, GETTING DOWN TO CASES, lays out the facts of the case, specifies the exact nature of the dispute and explains the result.

Every court day, GETTING DOWN TO CASES will highlight a different case than you will find on NEW YORK LAW NOTES.

Thank you for your continued interest and support.

Assumption of the risk.

Practice point: Even if defendant were negligent in hitting a golf ball without knowing where the other players were, or that they were close enough to require a warning, it does not rise to the level of creating a dangerous condition over and above the usual dangers inherent in the sport.

Practitioners should note that a defendant unreasonably increases the inherent risks only where the conduct is without competitive purpose and constitutes a flagrant infraction unrelated to the usual method of play.

Case: Anand v. Kapoor, NY Slip 03110 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Estates Law.

Motion practice.

Practice point: Failure to timely file proof of service is a procedural irregularity which can be cured.

Practitioners should note that, absent an order permitting the late filing of the proof of service, it is a nullity and defendant’s time to answer never begins to run.

Case: Zareef v. Wong, NY Slip Op 02990 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Assumption of the risk.

Notice of Claim.

Practice point: A notice of claim is not required to allege a civil rights violation.

Practitioners should note that, in New York, there is no cause of action for false arrest or false imprisonment sounding in negligence.

Case: Swinton v. City of New York, NY Slip Op 03054 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Labor Law.

Practice point: In a § 240(1) claim, there is summary judgment on liability because the unsecured A-frame ladder was inadequate to prevent plaintiff from falling after receiving an electric shock.

Practitioners should note that the fact that plaintiff had no recollection of falling does not change the result.

Case: Vukovich v. 1345 Fee, LLC, NY Slip Op 03026 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Notice of Claim.