Vacating a default.

Practice point: To vacate a default in opposing defendant’s summary judgment motion, plaintiff is required to demonstrate a reasonable excuse for not opposing the motion and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1].

Student note: Plaintiff’s excuse of law office failure will be rejected if the record shows that the alleged mistake was not isolated, but rather part of a pattern of willful delay and default.

Case: Thapt v. Luthern Med. Ctr., NY Slip Op 08141 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Title to a motor vehicle.

The relation-back doctrine.

Practice point: The doctrine, which is codified in CPLR 203(b), allows a claim asserted against a defendant in an amended complaint to relate back to claims previously asserted against a codefendant for statute of limitations purposes if the two defendants are united in interest.

Student note:  The plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new defendant knew or should have known that, but for  plaintiff's mistake as to the identity of the proper parties, the action would have been brought against him or her as well.

Case: Stevens v. Winthrop S. Nassau Univ. Health Sys., Inc., NY Slip Op 08140 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Vacating a default.

Pre-employment checks.

Practice point: To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, plaintiff must show that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.

Student note:  There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.

Case: Shor v. Touch-N-Go Farms, Inc., NY Slip Op 08138 (2d Dept. 2011).

Here is the decision.

Monday’s issue:  The relation-back doctrine.

Happy Thanksgiving.

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

Tomorrow’s issue is pre-employment checks.

A property owner's duty to protect.

Practice point: Although a property owner must act in a reasonable manner to prevent harm to those on its premises, the duty to control the conduct of persons on its premises arises only when the owner can control such conduct, and is reasonably aware of the need for that control.

Student note:  The owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.

Case: Kiely v. Benini, NY Slip Op 08126 (2d Dept. 2011).

Here is the decision.

Friday’s issue: Pre-employment checks.

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.