Practice point: There likely will be a change in custody only if, in the best interests of the child, the totality of the circumstances warrants a modification.
Practitioners should note that the court will consider factors such as the home environment and the custodial parent’s guidance; each parent’s ability to provide for the child's emotional and intellectual development; and each parent’s financial status as it relates to providing for the child.
Case: McGovern v. Lynch, NY Slip Op 03736 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Legal malpractice.
You will find another instructive case here.
May 26, 2009
May 25, 2009
Memorial Day.
Happy and safe Memorial Day to my fellow Vietnam veterans and to the men and women, of whatever service or stripe, who have served to keep us free.
May 22, 2009
Motion practice.
Practice point: To oppose plaintiff’s motion for leave to enter a default judgment for failing to timely serve an answer, defendant must demonstrate a justifiable excuse for its default and a meritorious defense.
Practitioners should note that defendant's insurance carrier's lengthy delay before defending the action, without more, is insufficient to establish a reasonable excuse.
Case: Leifer v. Pilgreen Corp., NY Slip Op 03872 (2d Dept. 2009)
The opinion is here.
Tuesday’s issue: Family Law.
You will find another instructive case here.
Practitioners should note that defendant's insurance carrier's lengthy delay before defending the action, without more, is insufficient to establish a reasonable excuse.
Case: Leifer v. Pilgreen Corp., NY Slip Op 03872 (2d Dept. 2009)
The opinion is here.
Tuesday’s issue: Family Law.
You will find another instructive case here.
May 21, 2009
Municipalities Law.
Practice point: An injured police officer looking to recover under General Municipal Law § 205-e must identify a statute or ordinance which defendant violated, and must plead facts from which it may be inferred that defendant's negligence directly or indirectly caused the injuries.
Practitioners should note that proving indirect cause does not require the same proof as proximate cause in common-law negligence, but a practical or reasonable connection between the statutory or regulatory violation and the injury.
Case: Cerati v. Berrios, NY Slip Op 03469 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
You will find another instructive case here.
Practitioners should note that proving indirect cause does not require the same proof as proximate cause in common-law negligence, but a practical or reasonable connection between the statutory or regulatory violation and the injury.
Case: Cerati v. Berrios, NY Slip Op 03469 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
You will find another instructive case here.
May 20, 2009
Legal malpractice.
Practice point: A legal malpractice claim may result from giving faulty advice to a client.
Practitioners should note that an attorney may be liable for ignorance of the rules of practice; failure to comply with conditions precedent to suit; neglect to prosecute; or failure to conduct adequate research.
Case: Mortenson v. Shea, NY Slip 03611 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Municipalities Law.
You will find another instructive case here.
Practitioners should note that an attorney may be liable for ignorance of the rules of practice; failure to comply with conditions precedent to suit; neglect to prosecute; or failure to conduct adequate research.
Case: Mortenson v. Shea, NY Slip 03611 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Municipalities Law.
You will find another instructive case here.
May 19, 2009
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.
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.
May 18, 2009
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.
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.
May 15, 2009
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.
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.
May 14, 2009
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.
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.
May 13, 2009
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.
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.
May 12, 2009
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.
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.
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