Falls on ice.

Practice point: Defendant did not refute plaintiffs' contention that the dangerous condition existed, and, therefore, had to establish that it did not create the condition or have notice of it.

Student note: Defendant failed to meet its burden with respect to notice when it proffered no affidavit or testimony based on personal knowledge as to when its employees last inspected the sidewalk, or the sidewalk's condition before the accident.

Case: Spector v. Cushman & Wakefield, Inc., NY Slip Op 06189 (1st Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Disbarment.

Contracts.

Practice point: When plaintiff misnamed the corporate signatory, who had committed no wrongful conduct, the court will dismiss the action as against this defendant.

Student note: There is nothing inherently unconscionable about a nonreciprocal attorney's fee provision in a commercial contract.

Case: Lansco Corp. v. Kampeas, NY Slip Op 06188 (1st Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Falls on ice.

Arbitrations.

Practice point: Prior arbitration awards may be given effect in a subsequent judicial action, pursuant to CPLR 3211[a][5].

Student note:  Because mutuality of parties is not required, a defendant may preclude a plaintiff from relitigating an issue resolved against that plaintiff in an earlier arbitration with a different defendant.

Case: Bernard v. Proskauer Rose, LLP, NY Slip Op 06184 (1st Dept. 2011).

Here is the decision.

Listen here:

Monday's issue: Contracts.

Attorney discipline.

Practice point: Pursuant to 22 NYCRR 603.3(a), a New York attorney is subject to discipline here for conduct resulting in discipline in another jurisdiction.

Student note: If the other jurisdiction's sanction is consistent with the sanction for similar misconduct here, New York will impose it.

Case:  Matter of Sirkin, NY Slip Op 06192 (1st Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Arbitrations.

Setting aside a jury verdict.

Practice point: Pursuant to CPLR 4404(a),were the verdict is contrary to the weight of the evidence, a court may set aside a jury verdict and either (1) direct that judgment be entered in favor of a party, or (2) order a new trial.

Student note: The standard is whether the evidence so preponderates in favor of the movant that the jury could not have reached the verdict by any fair interpretation of the evidence.

Case: Kim v. New York City Transit, NY Slip Op 06123 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Attorney discipline.

Labor Law.

Practice point: Performing construction work for purposes of § 240(1) and working at a construction site for purposes of § 241(6) are distinguished from fabricating and transporting materials to be used in ongoing work at the construction site. 

Student note: Dispositive for dismissal was the fact that, at the time of his injury, plaintiff was engaged in the fabrication and loading of steel at his employer's Bronx facility, not in performing construction work at the construction site in Queens.

Case: Flores v. ERC Holding LLC, NY Slip Op 06187 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue: Setting aside a jury verdict.

Administrative hearings.

Practice point: The standard of judicial review is whether the determination was supported by substantial evidence.

Student note: Where the evidence is conflicting and there is room for choice, a reviewing court may not weigh the evidence or reject the agency's choice.

Case: Matter of Martin v. Board of Trustees of the Vil. of Pelham Manor, NY Slip OP 06106 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Labor Law.

Informed consent.

Practice point: Plaintiff must prove that no reasonable person, if fully informed, would consent to the treatment, and that the treatment proximately caused the injury.

Student note: Pursuant to CPLR 4401-a, a prima facie claim requires expert testimony establishing that the disclosed information about the procedure's inherent risks was qualitatively insufficient. 

Case: Evart v. Park Ave. Chiropractics, P.C., NY Slip Op 05878 (1st Dept. 2011).

Here is the decision.

Monday's issue: Administrative hearings.

Personal injury.

Practice point: Defendant is entitled to summary judgment as a matter of law when plaintiff cannot identify the defect that caused the injury.

Student note: It was not enough when, at his deposition, decedent-plaintiff' had circled the defect in the photograph based on his recognition of the approximate location where he fell — not his recognition of the defect itself.

Case: Siegel v. City of New York, NY Slip Op 05937 (1st Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Informed consent.

Medical malpractice.

Practice point: If the matter is not within the ordinary juror's experience, expert testimony is needed to prove a deviation from the accepted standard of medical care and proximate cause.

Student note: When that expert testimony is precluded, plaintiff cannot make out a prima facie case, and the complaint will be dismissed.

Case: Sushchenko v. Dyker Emergency Physicians Serv., P.C., NY Slip Op 06101 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Personal injury.

90-day demands.

Practice point: On receipt of a 90-day demand, pursuant to CPLR 3216, plaintiff must serve and file a timely note of issue, or move, before the default date, to vacate the demand or to extend the time, pursuant to CPLR 2004.

Student note: Otherwise, plaintiff must demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action to avoid dismissal, pursuant to CPLR 3216[e].

Case Gagnon v. Campbell, NY Slip Op 06092 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Medical malpractice.