Court holiday.

The courts are closed today and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue: Piercing the corporate veil.

Declaratory judgments.

Practice point: On a motion to dismiss a declaratory judgment action prior to service of an answer, the only issue is whether a cause of action for declaratory relief is set forth, not whether the plaintiff is entitled to a favorable declaration.

Student note: A court may reach the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where no questions of fact are presented. The motion will be taken as one for a declaration in the defendant's favor.

Case: Tilcon v. Town of Poughkeepsie, NY Slip Op 06849 (2d Dept. 2011).

Here is the decision.

Tuesday’s issue:Piercing the corporate veil.

Appealable papers.

Practice point: The fact that an order appealed from contains language or reasoning that a party deems adverse to its interests does not furnish a basis for standing to take an appeal.

Student note: Despite the dicta that the plaintiffs deem contrary to their interests, they are not aggrieved thereby and, therefore, may not challenge that portion of the order. 

Case: Blum v. Valentine, NY Slip Op 06817 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Declaratory judgments.

Bus injuries.

Practice point: To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was unusual and violent.

Student note:  The plaintiff's proof must consist of more than a mere characterization of the stop in those terms by the plaintiff.

Case: Black v. County of Dutchess, NY Slip Op 06816 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue:  Appealable papers.

Sidewalk defects.

Practice point: Prior written notice of the defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City, pursuant to Administrative Code of City of NY § 7-201[c][2].

Student note: Big Apple maps are independent records and the notice must be traced to the map that is closest in time to the date a defect is alleged to have caused an accident.

Case: Adamson v. City of New York, NY Slip Op 06812 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue: Bus injuries.

Parental rights.

Practice point: The petitioner established that the mother abandoned the child by failing to visit or maintain contact with the child for six months prior to the filing of the petition to terminate her parental rights, pursuant to Social Services Law § 384-b.

Student note:  The fact that the mother maintained communication with the petitioner regarding her other children, whom she continued to visit, did not negate the petitioner's showing that the mother intended to forgo her parental rights and obligations with respect to the child in question.

Case: Matter of Amaru M. v. Kizwana M., NY Slip Op 06561 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Sidewalk defects.

Service of process.

Practice point: The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with.

Student note: Where the court orders service by a particular date, all components of service must be accomplished by that date.

Case: Matter of Sharma v. New, NY Slip Op 06563 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Parental rights.

Municipalities Law.

Practice point: Unlike on a claim pursuant to 42 USC § 1983, a municipality may be vicariously liable on a state law assault and battery claim for torts committed by a police officer under a theory of respondeat superior.

Student note: Public policy bars claims for intentional infliction of emotional distress against a governmental entity.

Case: Eckardt v. City of White Plains, NY Slip Op 06548 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Service of process.

Labor Law.

Practice point: Plaintiff was injured when he was standing on a temporary wooden step which shifted as he was moving an air tank up a concrete stairway from the basement of the work site to the first floor. The court found an issue of fact as to whether the temporary step was there to aid employees in ascending the stairway to different levels of the site, and thus constituted a device to protect employees against elevation-related risks within the meaning of § 240(1).

Student note: Defendant had general supervisory authority at the work site, which is insufficient to trigger liability under Labor Law § 200 and common-law negligence principles .

Case: Morris v. City of New York, NY Slip Op 06534 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue: Municipalities Law.

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.