Extreme weather.

Practice point:  Summary judgment is proper where defendant demonstrates, through climatological data and expert opinion, that the conditions would preclude the existence of snow or ice at the time of the accident.

Students should note that, pursuant to CPLR 4528, a record of weather observations taken under the direction of the United States Weather Bureau is prima facie evidence of the facts stated.

Massey v. Newburgh W. Realty, Inc., NY Slip Op 04086 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is sidewalk defects.

Happy Memorial Day.

Today is a court holiday, and so there is no post on NEW YORK LAW NOTES.

To our Veterans, thank you for your service. If you have a family member in service right now, thank you for your sacrifice.

A safe and happy holiday to all of you.

Tomorrow's issue is extreme weather.

Labor Law.

Practice point: To establish a § 240(1) claim, plaintiff must demonstrate that defendant violated the statute, and that this violation was the proximate cause of his injuries.

Students should note that if plaintiff's actions are the sole proximate cause of his injuries, liability does not attach.

Tomlins v. DiLuna, NY Slip Op 04234 (2d Dept. 2011).

Here is the decision. 

Tuesday's issue is extreme weather.

Medical malpractice.

Practice point: Plaintiff must prove that defendant deviated from accepted community standards of practice, and that this was the proximate cause of the injury.

Students should note that conclusory and unsupported allegations tending to establish the elements will not defeat defendant's summary judgment motion.

Salvia v. St. Catherine of Sienna Med. Ctr., NY Slip Op 04227 (2d Dept. 2011).

Here is the decision. 

Tomorrow's issue is Labor Law.

Summary judgment.

Practice point: To establish that the motion is premature, defendant must offer an evidentiary basis to show that discovery may lead to relevant evidence, and that the facts essential to opposing the motion are exclusively within plaintiff's knowledge and control.

Students should note that mere hope or speculation that such evidence will be uncovered by further discovery is an insufficient basis.

Martinez v. Kreychmar, NY Slip Op 04214 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is medical malpractice.

Background checks.

Practice point: The employer has no duty to inquire as to whether an employee has been convicted of crimes in the past.

Students should note that the employer will not be liable on a respondeat superior theory if the employee's behavior was outside the scope of employment.

McCann v. Varrick Group LLC, NY Slip Op 04104 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is summary judgment.

Personal jurisdiction.

Practice point: Defendant does not waive any defenses based on lack of personal jurisdiction by removing the action to federal court.

Students should note that the determination of whether a tortious act committed outside New York causes injury inside the state depends on the location of the original event which caused the injury.

Magwitch, L.L.C. v. Pusser's, Inc., NY Slip Op 03973 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is background checks.

Employment law.

Practice point: An employee may solicit an employer's customers only when the employment relationship has terminated.

Students should note that the employee may create a competing business prior to termination unless, in doing so, the employee improperly uses the employer's time, resources or trade secrets.

Island Sports Physical Therapy v. Burns, NY Slip Op 04002 (2d Dept. 2011).

Here is the decision.

Monday's issue is personal jurisdiction.

Defamation.

Practice point: Only statements alleging facts are properly the subject of the action.

Students should note that falsity is a necessary element of the cause of action.

Galanos v. Cifone, NY Slip Op 03996 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is employment law.

The best evidence rule.

Practice point: Plaintiff did not dispute the existence of defendant's affidavit, or the accuracy of the reproduction, and so the rule should not have been invoked to bar consideration of the reproduction.

Students should note that the rule requires the production of the original writing if its contents are in dispute and sought to be proven.

Billingy v. Blagrove, NY Slip Op 03986 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is defamation.

Elevators.

Practice point: A property owner may be liable for injuries resulting from malfunctions or defects of which it has notice.

Students should note that a company which contracts to do repairs may be liable for not correcting a defect of which it is aware, or for not finding a defect that it reasonably should have found.

Isaac v. 1515 Macombs, LLC, NY Slip Op 03717 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue is the best evidence rule.