Legal malpractice.

Practice point: The standard to which the defendant's conduct is to be compared is not that of the most highly skilled attorney, nor is it that of the average member of the legal profession, but that of an attorney who is competent and qualified. The conduct of legal matters routinely involve questions of judgment and discretion as to which even the most distinguished members of the profession may differ. Absent an express agreement, an attorney is not a guarantor of a particular result, and may not be held liable in negligence for the exercise of appropriate judgment that leads to an unsuccessful result.

Student note:  It follows that the selection of one among several reasonable courses of action does not constitute malpractice. Attorneys are free to act in a manner that is reasonable and consistent with the law as it existed at the time of representation, without exposing themselves to liability for malpractice.

Case: Bua v.Purcell & Ingrao, P.C., NY Slip Op 06908 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue:  Default judgments.

Strict products liability.

Practice point: The defendants established prima facie entitlement to judgment as a matter of law by demonstrating that the solvent-based sealer, as designed, was reasonably safe for its intended use; that is, the utility of the product outweighed its inherent danger. Specifically, the defendants' expert affidavits established that the volatile solvent contained in the defendants' sealer was critical to the sealer's ability to dry quickly and results in a quality finish to the wood upon which it is applied, that the sealer is cost effective for users, and that the sealer may be safely used when the warnings and instructions provided on the sealer's label are followed.

In opposition, however, the plaintiff raised a triable issue of fact as to whether the utility of the solvent-based sealer did not outweigh its inherent danger because particular water-based sealers, which were safer than the solvent-based sealer, were equally useful.

Student note: A summary judgment motion will be defeated if plaintiff submits evidence sufficient to raise a triable issue as to whether a product’s utility outweighs its inherent danger.

Case: Andrade v. T.C. Dunham Paint Co., Inc., NY Slip Op 06905 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Legal malpractice.

Adverse possession.

Practice point: Where there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely. To establish a claim, the occupation of the property must be (1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of at least 10 years. Because the acquisition of title by adverse possession is not favored under the law, the elements must be proven by clear and convincing evidence.

Student note: The character of the possession must be such that it would give the owner a cause of action in ejectment against the occupier. In addition, where the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was usually cultivated or improved or protected by a substantial inclosure.

Case: Air Stream Corp. v. 3300 Lawson Corp., NY Slip Op 06903 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Strict products liability.

Accountant malpractice claims.

Practice point: The cause of action accrues upon the client's receipt of the accountant's work product.

Student note: A cause of action to recover damages for nonmedical professional malpractice must be commenced within three years after the cause of action accrues.

Case: Rodeo Family Enters., LLC v. Matte, NY Slip Op 06793 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Adverse possession.

Judicial review of a university's discipline of a professor.

Practice point: Judicial review of an academic institution's disciplinary determinations is limited to whether it substantially adhered to its own published rules and guidelines, and whether the determinations are based on a rational interpretation of the relevant evidence.

Student note: When a university has not substantially complied with its own guidelines or its determination is not rationally based upon the evidence, the determination will be annulled as arbitrary and capricious.

Case: Matter of Kickertz v. NYU, NY Slip Op 06834 (1st Dept. 2012).

Here is the decision. 

Monday’s issue:  Accountant malpractice claims.

A civilian's liability for providing information to law enforcement.

Practice point: A civilian will not be held liable for false arrest or false imprisonment.for furnishing information to law enforcement authorities who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed.

Student note: To be liable for false arrest or false imprisonment, the civilian must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition.

Case: Petrychenko v. Solovey, NY Slip Op 06792 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Judicial review of a university’s discipline of a professor.

Contractor liability.

Practice point: A contractor that performs its work in accordance with contract plans is not lliable unless those plans are so patently defective as to place a contractor of ordinary prudence on notice that the project, if completed according to the plans, is potentially dangerous.

Student note: As a general rule, a builder or contractor is justified in relying upon the plans and specifications which he has contracted to follow.

Case: Nichols-Sisson v. Windstar Airport Serv., Inc., NY Slip Op 06788 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: A civilian’s liability for providing information to law enforcement.

Assault, and whether words alone rise to the level.

Practice point: To plead a cause of action to recover damages for assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent apprehension of harmful contact.

Student note: While an action for an assault need not involve physical injury, but only a grievous affront or threat to the person of the plaintiff, words, without some menacing gesture or act accompanying them, ordinarily will not be sufficient to state a cause of action.

Case: Gould v. Rempel, NY Slip Op 06779 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Contractor liability.

Defamation.

Practice point: The cause of action sounding in defamation was dismissed, pursuant to CPLR 3211(a)(1), because defendant’s documentary evidence established conclusively that the plaintiff, in a matrimonial action, consented to the admission of the court-ordered report.

Student note: An essential element of a defamation claim is that the alleged defamatory statement was published without privilege or authorization.

Case: Baker v. Inamdar, NY Slip Op 06770 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Assault, and whether words alone rise to the level.

Vacating a dismissal order.

Practice point: To vacate the dismissal order and restore the action to the trial calendar, a plaintiff is required to demonstrate both a reasonable excuse for the default in proceeding with trial and a potentially meritorious cause of action, pursuant to CPLR 5015[a][1].

Student note: Here, where the plaintiffs' trial attorney was actually engaged in another matter on the scheduled trial date, and this was his first request for an adjournment, the plaintiffs demonstrated a reasonable excuse for the default, notwithstanding the technical defect in counsel's affirmation of engagement. In addition, the affidavit of merit provided by the plaintiffs' medical expert was sufficient to establish the existence of a potentially meritorious cause of action.

Case: Piper-Rader v. Muslim, NY Slip Op 06592 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Defamation.

Motion to dismiss for failure to serve and file a note of issue, and preclusion from testifying at trial.

Practice point: The complaint was not dismissed on the grounds that plaintiff defied the court's order to serve and file a note of issue because, although court orders may constitute a written demand to serve and file a note of issue under CPLR 3216(b)(3), the order here did not give plaintiff the required 90 days to serve and file a note of issue, or contain a statement that failure to timely do so would serve as a basis for a motion to dismiss.

Student note: Plaintiff was precluded from testifying at trial because of an irresponsible approach to discovery. Plaintiff failed to appear on the court-ordered date for deposition, despite defendants' attempts to confirm her availability before the deposition date; never apprised the court of her inability to be deposed that day, despite clear directives to do so in the preliminary conference order; never explained her failure to do any of the foregoing; and failed to timely respond to interrogatories by the discovery deadline, despite multiple requests to do so.

Case: Mehta v. Chugh, NY Slip Op 06645 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Vacating a dismissal order.