Remedies.

A plaintiff is not precluded from maintaining an action simply because plaintiff received payment from its insurance carrier.

Practitioners should note that plaintiff's receipt of an insurance payment may be relevant as a possible setoff against the damages award, pursuant to CPLR 4545[c].

Case: Hopper v. McCollum, NY Slip Op 06315 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

Motion practice.

Practice point: The filing of a supplemental summons and complaint commences an action against a newly-joined defendant or a third-party defendant, pursuant to CPLR 305[a].

Practitioners should note that a claim asserted against a defendant in an amended filing may relate back to claims previously asserted against a codefendant for statute of limitations purposes where the two defendants are united in interest, pursuant to CPLR 203[c].

Case: Benn v. Losquadro Ice Co., Inc., NY Slip Op 06307 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Remedies.

Municipalities Law.

Practice point: The markings on a Big Apple map must give notice of the particular defect that allegedly caused the injury. Markings showing a sidewalk crack do not give notice of a hole at the end of that crack.

Practitioners should note that, on a motion for summary judgment, where the City establishes that it lacked prior written notice, the burden shifts to plaintiff to demonstrate the applicability of one of two recognized exceptions to the requirement of written notice: (1) that the municipality affirmatively created the defect through an act of negligence, or (2) that a special use resulted in a special benefit to the municipality.

Case: Ortiz v. City of New York, NY Slip Op 06299 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: Where there is an inconsistency between an order and the decision on which it is based, the decision controls.

Practitioners should note that the order is not rendered a nullity by this inconsistency unless it affects a substantial right of a party, pursuant to CPLR 5019[a].

Case: Matter of Stewart, NY Slip Op 06254 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Motion practice.

Practice point: On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, give plaintiff the benefit of every possible favorable inference, and determine only whether the allegations fit within any cognizable legal theory.

Practitioners should note that while affidavits may be considered, if the motion has not been converted to a CPLR 3212 motion for summary judgment, affidavits are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims.

Case: Mathurin v. Lost & Found Recovery, LLC, NY Slip Op 06240 (2d Dept. 2009)

The opinion is here.

Tuesday’s issue: Motion practice.

Torts.

Practice point: To demonstrate a lack of informed consent, a plaintiff must establish (1) that defendant failed to disclose the material risks, benefits and alternatives to the surgery which a reasonable medical practitioner would have disclosed, and (2) that a reasonably prudent person in plaintiff's position would not have undergone the surgery if he or she had been fully informed, pursuant to Public Health Law § 2805-d[1], [3].

Practitioners should note that informed consent does not require disclosure of the qualifications of personnel providing the professional treatment, pursuant to Public Health Law § 2805-d.

Case: Johnson v. Jacobwitz, NY Slip Op 06236 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Property.

Practice point: Partition is an equitable remedy and Supreme Court has the authority to adjust the parties’ rights so that each receives the proper share of the property and its benefits.

Practitioners should note that a tenant’s expenditures in excess
of tenant’s obligations may be charged against the cotenant’s interest. These expenditures include down payments and mortgage payments.

Case: Brady v. Varrone, NY Slip Op 06228 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Municipalities Law.

Practice point: As a general rule, a municipal defendant is immune from liability for conduct involving the exercise of discretion and reasoned judgment.

Practitioners should note that the judgment error rule does not immunize municipal defendants when an innocent bystander is injured by a police officer’s action in an altercation involving a violation of department guidelines governing the use of deadly force.

Case: Johnson v. City of New York, NY Slip Op 06225 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Property.

Labor Law.

Practice point: For summary judgment in a § 240(1) action, a plaintiff must establish that there was a violation of the statute, and that the violation was the proximate cause of the injuries.

Practitioners should note that there is no liability if adequate safety devices are provided and the worker either chooses not to use them or misuses them.

Case: Cherry v. Time Warner, Inc., NY Slip Op 06226 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Municipalities Law.

Practice point: Generally, a plaintiff who has failed to comply with a demand for a hearing pursuant to General Municipal Law 50-h(2) is precluded from commencing an action against a municipality.

Practitioners should note that the complaint should not be dismissed where the hearing has been postponed indefinitely beyond the statutory 90-day period, and the municipality has not rescheduled the hearing.

Case: Vargas v. City of Yonkers, NY Slip Op 06176 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

Trusts and Estates.

Practice point: To make a valid inter vivos gift, there must be
the intent to transfer; there must be delivery, either actual or constructive; and there must be acceptance by the donee.

Practitioners should note that the law will presume an acceptance when the gift is of value.

Case: Shybunko v. Geodesic Homes, Inc., NY Slip Op 06174 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.