Legal malpractice.

Practice point: To recover damages, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.

Student note: To establish causation, a plaintiff is required to show that he would not have incurred any damages, but for the lawyer's negligence, and that he incurred actual damages as a direct result of the attorney's actions or inaction.

Case: Humbert v. Allen, NY Slip Op 08125 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: A property owner’s duty to protect.

Respondeat superior.

Practice point: Pursuant to the doctrine, an employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment.

Student note:  However, liability doe not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business.

Case: Horvath v. L & B Gardens, Inc., NY Slip Op 08124 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Legal malpractice.

Proper service.

Practice point: Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service.

Student note: However, where there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted, and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence.

Case: Goralski v. Nadzan, NY Slip Op 08122 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Respondeat superior.

Whistleblowers.

Practice point: A cause of action based upon Labor Law § 740, known as the whistleblower statute, is available to an employee who discloses or threatens to disclose an employer's activity or practice which (1) is in violation of a law, rule or regulation, and (2) creates a substantial and specific danger to the public health.

Student note: Since plaintiff asserted a § 740 cause of action, she waived the cause of action alleging wrongful termination, inasmuch as it arose out of the same underlying claim of retaliatory action.

Case: Freese v. Willa, NY Slip Op 08118 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Proper service.

Caveat emptor.

Practice point: New York adheres to the doctrine and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm's length, unless there is some conduct which constitutes active concealment.

Student note: A plaintiff seeking to recover damages for active concealment must show that the defendant thwarted the plaintiff's efforts to fulfill the responsibilities imposed by the doctrine.

Case: Margolin v. I M Kapco, Inc., NY Slip Op 07815 (2d Dept. 2011)

Here is the decision.

Tomorrow’s issue: Whistleblowers.

Unlicensed contractors.

Practice point: An unlicensed contractor may neither enforce a home improvement contract against an owner nor seek recovery in quantum meruit.

Student note: Pursuant to CPLR 3015(e), an action to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services will be dismissed if the complaint does not allege compliance with the licensing requirement.

Case: Enko Constr. Corp. v. Aronshtein, NY Slip Op 07805 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Caveat emptor.

Preliminary injunctions.

Practice point: Where the movant does not demonstrate a likelihood of success on the merits, irreparable damage, and a balance of the equities in movant's favor, the motion will not be granted.

Student note: The motion will not be denied just because there are issues of fact, unless they subvert the plaintiff's likelihood of success on the merits to such a degree that it cannot be said that the plaintiff has established a clear right to relief.

Case: Cooper v. Board of White Sands Condominium, NY Slip Op 07799 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Unlicensed contractors.

Veterans Day.

Today is a Court holiday, and so there is no post on NEW YORK LAW NOTES.

To all Veterans, thank you for your service, and to everyone with a family member in service, thank you for your sacrifice.

Monday's issue is preliminary injunctions.

Judgment as a matter of law.

Practice point: A motion for judgment as a matter of law must be made at the close of the opposing party's case or at any time on the basis of admissions, pursuant to CPLR 4401.

Student note: The grant of such a motion prior to the close of the opposing party's case generally will be reversed as premature, even if the opposing party's ultimate success is improbable.

Case: Burbige v. Siben & Ferber, NY Slip Op 07794 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Preliminary injunctions.

Time is of the essence.

Practice point: When the contract states that time is of the essence, the parties are obligated to comply strictly with its terms.

Student note:When time is of the essence, performance on the specified date is a material element of the contract, and failure to perform on that date constitutes a material breach.

Case: Bank of America v. Petit, NY Slip Op 07787 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Judgment as a matter of law.

Election Day.

Today is a Court holiday, and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue is time is of the essence.