Tort liability to a third party.

Practice point: A contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.

Student note: There is an exception where a contractor who undertakes to perform services pursuant to a contract negligently creates or exacerbates a dangerous condition by launching its own force or instrument of harm.

Case: Kramer v. Cury, NY Slip Op 00913 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Law of the case..

Labor Law.

Practice point: While § 240(1) is not limited to work performed on actual construction sites, the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.

Student note: Within the meaning of § 240(1), ‘altering’ requires making a significant physical change to the configuration or composition of the building or structure.

Case: Panico v. Advanstar Communications, Inc., NY Slip Op 00944 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue:  Tort liability to a third party.

Court holiday.

The courts are closed today to mark Washington’s Birthday.

Tomorrow’s issue: Labor Law.

Affirmative acts of negligence.

Practice point: A defendant may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk.

Student note: Speculation and surmise are insufficient to defeat a motion for summary judgment.

Case: Jeansimon v. Lumsden, NY Slip Op 00931 (2d Dept. 2012).

Here is the decision. 

Tuesday’s issue:  Labor Law.

Disinternment.

Practice point: Pursuant to N-PCL 1510(e), the consent of the cemetery corporation, the owners of the lot, and a decedent's surviving spouse, adult children, and parents is required before a body may be disinterred.

Student note: In the absence of consent, a court may grant a motion to disinter upon a showing of good and substantial reasons. The paramount factor a court must consider is the known desires of the decedent, but the court must also consider the desires of the decedent's next of kin.

Case: Brandenburg v. St. Michael’s Cemetery, NY Slip Op 00923 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Affirmative acts of negligence.

Intervention.

Practice point: CPLR 1013 provides that a court has discretion to permit a person to intervene when the person's claim or defense and the main action have a common question of law or fact.

Student note: In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action, or prejudice the substantial rights of any party.

Case: American Home Mtge. Servicing, Inc. v. Sharrocks, NY Slip Op 00918 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Disinternment.

Conversion.

Practice point: To establish the cause of action, a plaintiff must show (1) legal ownership or an immediate superior right of possession to a specific identifiable thing, and (2) that the defendant exercised an unauthorized dominion over the thing to the exclusion of the plaintiff's rights.

Student note: Tangible personal property or specific money must be involved.

Case: National Ctr. For Crisis Mgt., Inc. v. Lerner, NY Slip Op 00758 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Intervention.

Court holiday.

Courts are closed today to mark Lincoln's Birthday, and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue: Conversion.

Motions to dismiss.

Practice point: On a motion for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, see CPLR 3026; accept the facts as alleged in the complaint as true; accord the plaintiff the benefit of every possible favorable inference; and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note: Bare legal conclusions asserted in a complaint, however, are not presumed to be true, and whether the plaintiff can ultimately establish the allegations is not a factor.

Case: Knutt v. Metro Intl., S.A., NY Slip Op 00754 (2d Dept. 2012).

Here is the decision. 

Tuesday’s issue: Conversion.

Unlawful retaliation.

Practice point: To make out the claim, an employee-plaintiff must show that he or she has engaged in protected activity; (2) the employer was aware that the employee participated in the activity; (3) the employee suffered an adverse employment action based on the activity; and (4) there is a causal connection between the protected activity and the adverse employment action.

Student note: Once the plaintiff has met this initial burden, the burden shifts to the defendant to present legitimate, independent and nondiscriminatory reasons to support its actions. If the defendant meets this burden, the plaintiff must demonstrate that the reasons put forth by the defendant were merely a pretext.

Case: Delrio v. City of New York, NY Slip Op 00747 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Motions to dismiss.

Judgment as a matter of law.

Practice point: A defendant can establish prima facie entitlement to judgment as a matter of law by showing that the plaintiff cannot identify the cause of the accident.

Student note: A plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the injuries would be based on speculation.

Case: Califano v. Maple Lanes, NY Slip Op 00743 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Unlawful retaliation.