Employment relationships.

Practice point: The critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results.

Student note: Where the proof on the issue of control presents no conflict in evidence or is undisputed, the matter may properly be determined as a matter of law.

Case: Barak v. Chen, NY Slip Op06466 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue:  Discovery.

Mistakes.

Practice point: Pursuant to CPLR 5019(a), the court may cure any mistake, defect or irregularity in a judgment, including mathematical errors in calculation.

Student note: A judgment must conform strictly to the court's decision. Where there is an inconsistency between a judgment and the decision on which it is based, the decision controls.

Case: Berry v. Williams, NY Slip Op 06467 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Employment relationships.

Public Officers Law.

Practice point: Pursuant to § 87(2)(f), an agency may deny access to records which, if disclosed, would endanger the life or safety of any person, on a showing of a possibility of endangerment.

Student note:  Access to government records does not depend on the purpose for which the records are sought.

Case: Bellamy v. New York City Police Department, NY Slip Op 06410 (1st Dept. 2011).

Here is the decision.

Monday’s issue: Mistakes.

90-day notices.

Practice point: Plaintiffs’ failure to provide an excuse for not acting after being served with the notice resulted in the denial of their motion to vacate the dismissal, to restore the action to active status, and to extend the time to file a note of issue.

Student note: Pursuant to CPLR 3216(e), after the notice is served, the court can dismiss an action unless the served party shows a justifiable excuse for the delay and a meritorious cause of action.

Case: Walker v. City of New York, NY Slip Op 06375 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Public Officers Law.

Article 78 proceedings.

Practice point: Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and only when a court acts without jurisdiction or in excess of its authorized powers.

Student note: The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when there is a clear legal right to the relief sought.

Case: Matter of Walter v. Neary, NY Sip Op 06386 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue:  90-day notices.

Attorney discipline.

Practice point: Intentional conversion of escrow funds requires disbarment, absent extremely unusual mitigating circumstances.

Student note: The fact that the attorney intended to repay, or actually repays, converted funds does not negate a finding of venal intent.

Case: Matter of Squitieri, NY Slip Op 06418 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Article 78 proceedings.

Assumption of the risk.

Practice point: The dangers associated with players swinging bats during warm-ups are inherent in the sports of baseball and softball.

Student note: If the accident occurs so suddenly that even the most intense supervision could not have prevented it, lack of supervision cannot be the proximate cause of the injury.

Case: Navarro v. City of New York, NY Slip Op 06412 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue:  Attorney discipline.

Unconscionable contracts.

Practice point: A contract is unconscionable if there is an absence of meaningful choice on the part of one of the parties, together with terms which are unreasonably favorable to the other party.

Student Note: If there is a question as to a contract’s unconscionability, there must be a hearing regarding the circumstances of the contract’s signing, and the setting, purpose and effect of the disputed terms.

Case: Simar Holding Corp. v. GSC, NY Slip Op 06346 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Assumption of the risk.

Judgment liens.

Practice point: Judgment liens and other secured interests ordinarily survive bankruptcy.

Student note:  A creditor need not object to the debtor's discharge in bankruptcy in order to preserve its lien, since the discharge does not affect the lien.

Nelson, L.P. v. Jannace, NY Slip Op 06373 (2d Dept. 2011).

Here is the decision.

Tomorrow: Unconscionable contracts.

Workers' Compensation Law.

Practice point: The statute provides the exclusive remedy for an employee seeking damages for unintentional injuries incurred in the course of employment.

Student note: An intentional tort may give rise to a cause of action outside the ambit of the statute, but the complaint must allege an employer’s deliberate act directed at causing harm to this particular plaintiff.

Kruger v. EMFT, LLC, NY Slip Op 06369 (2d Dept. 2011).

Here is the decision.

Tomorrow: Judgment liens.

Res judicata.

Practice point: The doctrine gives binding effect to the judgment of a court of competent jurisdiction, and prevents the parties, and those in privity with them, from relitigating any questions that were necessarily decided therein.

Student note: To establish privity, the party raising a res judicata defense must demonstrate a connection between the party to be precluded and a party to the prior action, such that the nonparty's interests can be said to have been previously represented.

Case: Farren v. Lisogorsky, NY Slip Op 06366 (2d Dept. 2011).

Here is the decision.

Tomorrow: Workers’ Compensation Law.