Electronic discovery.

Practice point: A court may establish the method and scope of electronic discovery, pursuant to 22 NYCRR 202.12 [c][3].

Student note: CPLR 3111 and 3122(d) require the requesting party to defray the reasonable production expenses of a nonparty.

Case: Tener v. Cremer, NY Slip Op 06543 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Labor Law.

Labor Law.

Practice point: When the accident results from a dangerous work-site condition, proof of defendant's supervision and control over plaintiff's work is not required to impose liability under the statute or the common law.

Student note: Plaintiff's 241(6) claim, which was based on an alleged violation of 12 NYCRR 23-1.5, was dismissed because that section is insufficiently specific.

Case: Cordeiro v. TS Midtown Holdings, LLC, NY Slip Op 06457 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue: Electronic discovery.

Summary judgment.

Practice point: On its motion for summary judgment, the defendant bore the burden of affirmatively demonstrating the merit of its claim or defense.

Student note: The defendant could not satisfy its burden by pointing to gaps in the plaintiff’s proof.

Case: Rubistello v. Bartolini Landscaping, Inc., NY Slip Op 06483 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Labor Law.

A landowner's duty.

Practice point: Under New York common law, a landowner has a duty to maintain the premises in a reasonably safe condition, taking into account all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.

Student note:A landowner's duty may arise under the common law, by statute, or by regulation.

Case: Alnashmi v. Certified Analytical Group, Inc., NY Slip Op 06465 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Summary judgment.

Discovery.

Practice point: While CPLR 3101(a) provides for full disclosure of everything material and necessary in the prosecution of an action, the principle of full disclosure does not give a party the right to uncontrolled and unfettered disclosure.

Student note: When a particular discovery demand is inappropriate, the court may make a protective order with respect to that demand, pursuant to CPLR 3103[a], in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice.

Case: D’Adamo v. Saint Dominic’s Home, NY Slip Op 06469 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue:  A landowner’s duty.

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.