Court holiday.

The courts are closed today because of the elections.

Wednesday's issue: Vacating a default, and law office failure.

Malpractice as opposed to negligence.

Practice point: The distinction between malpractice and ordinary negligence turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons, or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts.

Student note: When the incompetence alleged is of a specialized medical nature, deriving from the physician-patient relationship, and substantially related to medical diagnosis and treatment, the action it gives rise to is by definition one for medical malpractice rather than for simple negligence.

Case: Giordano v. Scherz, NY Slip Op 07087 (2d Dept. 2012).

Here is the decision. 

Wednesday’s issue: Vacating a default and law office failure.

Motion to dismiss for failure to state a cause of action.

Practice point: On the motion, pursuant to CPLR 3211(a)(7), the court must construe the pleading liberally, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note: The motion should be granted only when (1) it has been shown that a material fact alleged in the complaint is not a fact at all, and (2) there is no significant dispute regarding it.

Case: Cusso v. Chabau Café Corp., NY Slip Op 07084 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Malpractice as opposed to negligence.

Improper service of an order to show cause.

Practice point: The absence of proper service of an order to show cause is a sufficient and complete excuse for a default on the motion, and deprives the court of jurisdiction to entertain the motion.

Student note: Since the court was deprived of jurisdiction to entertain the plaintiff's motion, the order granting the motion, and the judgment entered upon that order, were nullities and must be vacated.

Case: Crown Waterproofing, Inc. v. Tadco Constr. Corp., NY Slip Op 07083 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Motion to dismiss for failure to state a cause of action.

A fall from a ladder at the worksite.

Practice point: Labor Law § 240(1) imposes a nondelegable duty and absolute liability for workers' injuries proximately caused  by an owner's failure to provide safety devices necessary to protect workers subject to the risks inherent in elevated work sites.

Student note: Although a fall from a ladder, by itself, is not sufficient to impose § 240(1) liability, liability will be imposed when the evidence shows that the  ladder was inadequately secured and that the failure to secure the ladder was a substantial factor in causing the plaintiff's injuries.

Case: Canas v. Harbour at Blue Point Home Owners Assn., Inc., NY Slip Op 07082 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Improper service of an order to show cause.

Motion to change venue denied.

Practice point: The moving defendant failed to substantiate its claim that, upon the discontinuance of this action against the other defendant, none of the parties was a resident of Queens County, since it failed to submit any proof as to its own residence, pursuant to CPLR 503[a], [c].

Student note: Additionally, the moving defendant failed to demonstrate that venue should be transferred based on the convenience of witnesses, pursuant to CPLR 510[3].

Case: Amoroso v. Stop & Shop, NY Slip Op 07081 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: A fall from a ladder at the worksite.

Dismissing a complaint.

Practice point: The complaint was dismissed after plaintiff failed to comply with two court orders despite the fact that the second order clearly warned plaintiff that its action would be dismissed unless it complied. Plaintiff's supplemental discovery response was late and incomplete, its excuse for failing to respond in a timely manner lacked merit, and it did not offer any excuse for those documents that it has still not exchanged.

Student note: The court found that it could be reasonably inferred that plaintiff's conduct had met the dismissal standard of willful and contumacious.

Case: LaSalle Talman Bank, F.S.B. v. Weisblum & Felice, NY Slip Op 06864 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Motion to change venue denied.

Default judgments.

Practice point: On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing.

Student note: Improper service of the summons and complaint is a defense that may be waived, pursuant to CPLR 3211[e].

Case: Dupps v. Betancourt, NY Slip Op 06915 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Dismissing a complaint.

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.