Probative value.

Practice point: An attorney’s affirmation or a witness’ affidavit which is not based on personal knowledge is of no probative or evidentiary value.

Student note: Similarly, an alleged expert’s letter, unsworn and without specifying the writer’s qualifications, is not evidentiary material in admissible form, and is of no probative value.

Case: Currie v. Wilhouski, NY Slip Op 02281 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Striking a pleading.

Contempt.

Practice point: Contempt is a drastic remedy which should not be granted absent a clear right to the relief.

Student note: Defendants’ failure to appear for a continued deposition on the advice of counsel, based upon an imminent bankruptcy filing, does not rise to the level of contempt. Even though it was in disobedience of a court order, plaintiff failed to show that it was prejudiced, since plaintiff's counsel had failed to pursue relevant questions in the earlier deposition and is still able to depose defendant.

Case: Benson Park Assoc. LLC v. Herman, NY Slip Op 02399 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Probative value.

Jurisdiction.

Practice point: The trucking company appointed an agent for service of process in New York, and that is consent to suit in the State.

Student note: The truck driver, a Georgia resident, was driving from Florida to Massachusetts, when the accident happened in New Jersey, and so there is no basis for personal jurisdiction over him.

Case: Pena v. R & B Transp., NY Slip Op 02389 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Contempt.

Slips and falls.

Practice point: Plaintiff alleged that she slipped and fell in a puddle on an exterior landing, and that two yellow caution cones had been placed against the wall, to her right and left, as she exited, but not in the area of the liquid condition. The presence of caution cones created a triable issue of fact as to prior actual notice of the condition, as defendants' witness admitted that they would place such caution cones to alert others to a slippery condition, and plaintiff denied that the cones were being used to prop open a door, as had been alleged by owner-defendants' witness.

Student note: While the hearsay portions of a witness affidavit submitted in opposition to a summary judgment motion, which referred to an unidentified person or persons having admitted prior notice of the condition, are inadmissible, the witness's first-hand account of giving defendants notice of the condition at least 45 minutes before the accident raises triable issues of fact as to prior actual and constructive notice.

Case: Rosado v. Phipps Houses Servs., Inc., NY Slip Op 02385 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Jurisdiction.

Bills of particulars.

Practice point: The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial.

Student note: Pursuant to CPLR 3043(b), a party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities, provided  that no new cause of action may be alleged or new injury claimed.

Case: Jurado v. Kalache, NY Slip Op 02083 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Slips and falls.

Workers' Compensation.

Practice point: This is the exclusive remedy when the hospital’s employee-plaintiff was injured when she tripped on a sidewalk adjacent to the emergency room, on her way back from the hospital’s human resources department to her own office, during working hours.

Student note: Even if the trip to human resources were purely personal, plaintiff was returning to her office for the purpose of resuming work, and was injured on property which her employer was responsible to maintain.

Case: Patricka v. City of New York, NY Slip Op 02163 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Bills of particulars.

Indemnification.

Practice point: A party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified.

Student note: If there are no fact issues regarding the indemnitee's active negligence, the court may render a conditional judgment on the issue of indemnity, pending determination of the primary action, in order that the indemnitee may obtain the earliest possible determination as to the extent of reimbursement.

Case: Rodriguez v. Tribeca 105, LLC, NY Slip Op 01667 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Workers’ Compensation.

Qualified privilege.

Practice point: The defense is available on a defamation claim if the communications were made to persons who had some common interest in the subject matter.

Student note: The defense will be defeated by demonstrating that the defendant spoke with malice.

Case: Constantine v. Teachers Coll., NY Slip Op 01782 (1st Dept. 2012).

 Here is the decision.

Tomorrow’s issue: Indemnification.

Account stated.

Practice point: Plaintiff-law firm established entitlement to summary judgment by showing that its client received, retained without objection, and partially paid invoices without protest.

Student note: A prior order fixing the amount of plaintiff's charging lien on the proceeds of the settlement of the underlying lawsuit is not res judicata as to plaintiff's account stated claim if plaintiff did not have an opportunity to litigate that claim when the court awarded the charging lien.

Case: Scheichet & Davis, P.C. v. Nohavicka, NY Slip Op 01763 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Qualified privilege.

Bankruptcy petitions.

Practice point: The failure to schedule a legal claim as an asset in a bankruptcy proceeding deprives the debtor of standing to raise it in a subsequent legal action.

Student note: Neither ignorance of the law nor inadvertent mistake excuses a plaintiff's failure to list such a claim as a potential asset in the petition.

Case: Hutchinson v. Chana Weller, DDS, PLLC, NY Slip Op 01875 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Account stated.

Vehicle owner's liability.

Practice point:  Vehicle and Traffic Law § 388(1) provides that, with the exception of bona fide commercial lessors of motor vehicles, which are exempt from vicarious liability by virtue of federal law, pursuant to 49 USC § 30106, the owner of a motor vehicle is liable for the negligence of one who operates the vehicle with the owner's express or implied consent.

Student note: This statute creates a presumption that the driver was using the vehicle with the owner's express or implied permission, which only may be rebutted by substantial evidence sufficient to show that the vehicle was not operated with the owner's consent. Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use.

Case: Vyrtle Trucking Corp. v. Browne, NY Slip Op 01811 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Bankruptcy petitions.