Affirmative defenses.

Practice point: CPLR 3211(b) authorizes a plaintiff to move, at any time, to dismiss a defendant's affirmative defense on the ground that it has no merit.

Student note:  In moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that it is without merit as a matter of law.

Case: Coyle v. Lefkowitz, NY Slip Op 08721 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue: Depositions.

Striking an answer.

Practice point: Pursuant to CPLR 3126, a court may strike an answer as a sanction if a defendant refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed.

Student note: However, the drastic remedy of striking an answer is inappropriate absent a clear showing that the defendant's failure to comply with discovery demands was willful or contumacious.

Case: Hoi Wah Lai v. Mack, NY Slip Op 08563 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue: Affirmative defenses.

Day care liability.

Practice point: A provider of day care services owes the same duty of care and supervision as a reasonably prudent parent under the circumstances.

Student note: As a general matter, schools have a duty to adequately supervise the students in their charge, and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.

Case: Gonzales v. Munchkinland Child Care, LLC, NY Slip Op 08561 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Striking an answer.

Landowner liability.

Practice point: The common law provides that liability for injuries sustained as a result of negligent maintenance of, or the existence of dangerous and defective conditions to, public sidewalks is placed on the municipality and not the abutting landowner.

Student note: However, an abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner, and expressly makes the owner liable for injuries caused by a breach of that duty.

Case: Alleyne v. City of New York, NY Slip Op 08548 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Day care liability.

Fee disputes.

Practice point: Part 137 does not apply to fee disputes involving sums of more than $50,000, absent the consent of the parties, pursuant to 22 NYCRR 137.1[b][2].

Student note: To the extent the client challenged the quality of the legal services provided, his contentions were unavailing, because he failed to raise them at the inquest deciding the reasonable value of the legal services provided.

Case: Yahudaii v. Baroukhian, NY Slip Op 08284 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue:  Landowner’s liability.

Legal malpractice.

Practice point: Plaintiffs were not required to allege the specific scope of defendants' duties, given the absence of a governing retainer agreement.

Student note:  Plaintiffs' expert affidavit was properly considered to remedy any defects in the complaint.

Case: Fitzsimmons v. Pryor Cashman LLP, NY Slip Op 08280 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue:  Fee disputes.

Late notice of claim.

Practice point: In exercising its discretion to grant leave to serve the late notice, a court must consider whether (1) the claimant has demonstrated a reasonable excuse for failing to serve timely; (2) the claimant was an infant, or mentally or physically incapacitated; (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter; and (4) the delay would substantially prejudice the public corporation in defending on the merits, pursuant to General Municipal Law § 50-e[5].

Student note: The factor of the petitioner’s infancy, standing alone, does not compel the granting of a petition for leave to serve a late notice.

Case: Matter of Magana v. Westchester County Health Care Corp., NY Slip Op 08155 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Legal malpractice.

Labor Law.

Practice point: For § 241(6) purposes, a temporary loading dock is a platform under Industrial Code § 23-1.22(c)(2), and not a scaffold.

Student note: An expert's opinion will be disregarded where no authority, treatise, standard, building code, article or other corroborating evidence is cited to support the assertion concerning an alleged deviation from good and accepted industry custom and practice.

Case: Cassidy v. Highrise Hoisting & Scaffolding, Inc., NY Slip Op 07936 (1st Dept. 2011).

Here is the decision.

Monday’s issue: Late notice of claim.

A binding signature.

Practice point: A person who signs an agreement without having read it is nonetheless bound by its terms.

Student note: A signer's duty to read and understand that which it signed is not diminished merely because he was provided with only a signature page.

Case: Vulcan Power Co. v. Munson, NY Slip Op 07917 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Labor Law.

Title to a motor vehicle.

Practice point: Title is transferred when the parties intend the transfer to occur.

Student note: Therefore, title may pass to a purchaser on delivery of the vehicle, notwithstanding that formal registration of the vehicle in the purchaser's name occurs later.

Case: Godfrey v. G.E. Capital Auto Lease, Inc., NY Slip Op 07903 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: A binding signature.

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.