Notice of claim.

Practice point: Plaintiff's unverified letters and emails to the Department of Education do not constitute a notice of claim, within the meaning of Education Law § 3813[1].

Practitioners should note that plaintiff's application for leave to file a late notice of claim will be denied as untimely if it is made beyond the one-year statute of limitations.

Case: Gastman v. Department of Educ. of City of New York, NY Slip Op 01693 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Administrative Law.

Negligence.

Practice point: The owner of an improperly parked car may be held liable to a plaintiff who is injured by the negligent driver of another vehicle.

Practitioners should note that liability requires a finding on foreseeability and proximate cause.

Case: Yavkina v. New York City Police Dept., NY Slip Op 01640 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Notice of claim.

Attorney-client privilege.

Practice point: Codified in CPLR 4503(a), the privilege belongs to the client and attaches if information is disclosed in confidence, for the purpose of facilitating legal advice or services, and in the course of a professional relationship.

Practitioners should note that communications which are shared with a third party generally are not privileged.

Case: Sieger v. Zak, NY Slip Op 01636 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Negligence.

Res judicata.

Practice point: Once a claim is concluded, all other claims arising out of the same transaction or series of transactions are barred, even if based on different theories or if seeking a different remedy.

Practitioners should note that it is sufficient if it appears from the judgment that the dismissal was on the merits.

Case: QFI, Inc. v. Shirley, NY Slip Op 01632 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Attorney-client privilege.

Medical malpractice.

Practice point: The limitations period is stayed when the course of treatment has run continuously and is related to the same original condition or complaint.

Practitioners should note that the continuous treatment doctrine may be applied to a physician who has left a medical group when there has been subsequent treatment by group members.

Case: Mule v. Peloro, NY Slip Op 01626 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Res judicata.

Assumption of the risk.

Practice point: While generally the risk is not assumed until play has begun, it is not always necessary for the game to have been formally underway.

Practitioners should note that there is no owner liability where an injury results directly from the course of action plaintiff decided to pursue.

Case: Marino v. Bingler, NY Slip Op 01623 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Medical malpractice.

Attorneys' fees.

Practice point: In a domestic relations matter, an attorney may not contract for, charge or collect a fee which is contingent on securing a divorce or which in any way is determined by reference to the amount of maintenance, support, equitable distribution or property settlement.

Practitioners should note that, as a matter of public policy, courts give particular scrutiny to attorney-client fee arrangements, and the attorney has the burden to show that the fee agreement is fair, reasonable and fully understood by the client.

Case: Law Off. of Howard M. File, Esq., P.C. v, Ostashko, NY Slip Op 01622 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Assumption of the risk.

Motion practice.

Practice point: A motion to dismiss will be granted, pursuant to
22 NYCRR 202.27(b), when plaintiff fails to provide a reasonable excuse for failing to appear on the trial start date, when the parties had stipulated to the date and to no further adjournments.

Practitioners should note the insufficiency of the excuse that, for the week set for trial, plaintiff was unable to get off work, when plaintiff was able to get time off to attend a family event. Aggravating factors might include the lengthy history of the case, including several prior motions to restore.

Case: Harris v. Bliss, NY Slip Op 01594 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Attorneys’ fees.

Motion practice.

Practice point: A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law, pursuant to CPLR 2221[e][2].

Practitioners should note that, absent circumstances set forth in CPLR 5015, the motion must be made prior to the entry of a final judgment or before the time to appeal has expired.

Case: Dinallo v. DAL Elec., NY Slip Op 01607 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A defendant waives late service by accepting and retaining the complaint, without objection, and serving an answer with a demand for a bill of particulars and a demand for discovery and inspection, before moving to dismiss pursuant to CPLR 3012(b).

Practitioners should note that no appeal lies from an order denying a motion for leave to reargue.

Case: Betancourt v. Delta Airlines, Inc., NY Slip Op 01600 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Labor Law.

Practice point: Owners of one- and two-family homes who do not direct or control the work are statutorily exempt from liability under § 240, which otherwise imposes a nondelegable duty to provide scaffolding and other protection to persons working in construction, excavation, or demolition.

Practitioners should note that the homeowner's exemption does not apply where the construction is effectively a commercial enterprise, such as building a new home for sale.

Case: Andreas v. Catskill Mtn. Lodging, LLC, NY Slip Op 01597 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.