Statute of limitations.

Practice point: Parties to a contract may agree to a time-limit for commencing an action which is less than otherwise provided in CPLR 201.

Practitioners should note that in moving to dismiss a complaint as time-barred, pursuant to CPLR 3211(a)(5), there must be a showing that defendant engaged in conduct that induced plaintiff to postpone bringing suit.

Case: Dimmick v. New York Prop. Ins. Underwriting Assn., NY Slip Op 09745 (2d Dept. 2008)

The opinion is here.

Friday's issue: Promissory notes.

Constructive notice.

Practice point: To meet its initial burden on the issue of lack of constructive notice in a slip and fall action, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.

Practitioners should note that defendant must offer more than deposition testimony referring to the typical cleaning regimen.

Case: Birnbaum v. New York Racing Assn., Inc., NY Slip Op 09741 (2d Dept. 2008)

The opinion is here.

Tomorrow's issue: Statute of limitations.

Attorneys' fees.

Practice point: Judiciary Law § 474 sets forth the general rule, namely, that compensation is governed by the attorney-client agreement, express or implied, which is otherwise not restrained by law.

Practitioners should note that, pursuant to CPLR 1207, if the action involves an infant, a judicially-declared incompetent or a conservatee, a court must approve the attorneys’ fees which are specified in a settlement.

Case: White v. Daimler Chrysler Corp., NY Slip Op 09592 (2d Dept. 2008)

The opinion is here.

Tomorrow's issue: Constructive notice.

Privileged communications.

Practice point: A qualified privilege extends to a communication on a subject in which both persons have an interest.

Practitioners should note that the qualified privilege is defeated where a plaintiff can demonstrate that defendant’s communication was not made in good faith but was motivated solely by malice.

Case: Phelan v. Huntington Tri-Village Little League, Inc., NY Slip Op 09576 (2d Dept. 2008)

The opinion is here.

Monday's issue: Attorneys' fees.

Merry Christmas.

Courts are closed because of the Christmas holiday and so there is no post today. Thank you for your support throughout the year and best wishes for a blessed Christmas season.

Courts reopen tomorrow and there will be a new post.

Tomorrow's issue: Privileged communications.

Personal jurisdiction.

Practice point: Failure to serve process leaves the court without personal jurisdiction over a defendant, and all subsequent proceedings are thereby rendered null and void.

Practitioners should note that, pursuant to CPLR 5015(a)(4), a default judgment must be vacated once a movant demonstrates the lack of personal jurisdiction.

Case: Hossain v. Fab Cab Corp., NY Slip Op 09561 (2d Dept. 2008)

The opinion is here.

Personal jurisdiction.

Practice point: Failure to serve process leaves the court without personal jurisdiction over a defendant, and all subsequent proceedings are thereby rendered null and void.

Practitioners should note that, pursuant to CPLR 5015(a)(4), a default judgment must be vacated once a movant demonstrates lack of personal jurisdiction.

Case: Hossain v. Fab Cab Corp., NY Slip Op 09561 (2d Dept. 2008)

The opinion is here.

Labor Law.

Practice point: Painting is a covered activity, pursuant to § 240(1), and, in order to be actionable, it need not be incidental to other specified activities such as construction, repair or alteration.

Practitioners should note that, by itself, a fall from a ladder is insufficient to impose statutory liability. There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing plaintiff's injuries.

Case: Artoglou v. Gene Scappy Realty Corp., NY Slip Op 09542 (2d Dept. 2008)

The opinion is here.

Equitable estoppel.

Practice point: To estop the assertion of a statute of limitations defense, plaintiff must establish by clear and convincing evidence that the action was not timely commenced because of defendant’s fraud, deception or misrepresentation.

Practitioners should note that the statute will not be tolled when plaintiff failed to plead either fraud or fraudulent concealment, but only alleged medical malpractice based on defendant's failure to appreciate the information contained in a radiology report.

Case: Bayuk v. Gilbert, NY Slip Op 09460 (1st Dept. 2008)

The opinion is here.

Corporations.

Practice point: A corporation must appear by an attorney, pursuant to CPLR 321(a).

Practitioners should note that, to avoid the statutory requirement, the corporation may assign its claims to an appropriate individual plaintiff.

Case: Kinlay v. Henley, NY Slip Op 09450 (1st Dept. 2008)

The opinion is here.

Negligence.

Practice point: Deposition testimony that the floor on which plaintiff slipped was "very shiny" and "overwaxed," without more, does not support an inference of negligent waxing or polishing.

Practitioners should note that no inference of negligence can be drawn from the fact that, after plaintiff fell, a carpet and a warning sign were placed on the floor.

Case: Purcell v. York Bldg. Maintenance Corp., NY Slip Op 09439 (1st Dept. 2008)

The opinion is here.

Right of way.

Practice point: A driver facing a red flashing light must stop before entering the intersection, pursuant to Vehicle and Traffic Law § 1113(a), and then proceed according to the rules applicable after stopping at a stop sign. A driver who fails to yield the right-of-way after stopping at a stop sign is in violation of § 1142(a), and is negligent as a matter of law.

Practitioners should note that a driver with the right-of-way is entitled to anticipate that others will obey the applicable traffic laws and yield the right-of-way.

Case: Melendez v. County of Nassau, NY Slip Op 09367 (2d Dept. 2008)

The opinion is here.

Trivial defects.

Practice point: Injuries resulting from trivial defects are not actionable.

Practitioners should note that there is no 'minimal dimension test' or per se rule that, in order to be actionable, a defect must be of a certain height or depth. Instead, a court will consider the width, depth, elevation, irregularity and appearance of the defect, along with the time, place and circumstance of the injury.

Case: Berry v. Rocking Horse Ranch Corp., NY Slip Op 09342 (2d Dept. 2008)

The opinion is here.

Pleadings.

Practice point: An answer to an amended complaint served pursuant to CPLR 3025(d) constitutes an original answer to the amended complaint, and affirmative defenses raised in that answer are not limited to those which had been asserted in the original answer.

Practitioners should note that a plaintiff cannot avoid the application of this rule by simply denominating a pleading as supplemental when, in fact, it asserts new injuries and a new category of damages, and which, therefore, is an amended pleading.

Practitioners should further note that a supplemental complaint does not supersede the original complaint, but is in addition to it, and the original answer remains in effect. In its answer to the supplemental complaint, a defendant may not assert a new affirmative defense unless it is responsive to the new matter alleged.

Case: Mendrzycki v. Cricchio, NY Slip Op 09044 (2d Dept. 2008)

The opinion is here.

Rear-end collisions.

Practice point: A rear-end collision with a stopped or braking vehicle creates a prima facie case of the moving vehicle driver’s negligence, and requires the driver to offer an adequate non-negligent explanation for the accident.

Practitioners should note that, standing alone, a claim that the driver ahead stopped suddenly does not defeat the presumption of negligence. However, evidence that a vehicle was rear-ended and propelled into the stopped vehicle in front of it may provide a sufficient non-negligent explanation, pursuant to Malak v. Wynder, NY Slip Op 09043 (2d Dept. 2008).

Case: Jumandeo v. Franks, NY Slip Op 09035 (2d Dept. 2008)

The opinion is here.

Privileged communications.

Practice point: An attorney may reveal confidences or secrets when their publication is necessary to defend against an accusation of wrongful conduct, pursuant to DR 4-101(C).

Practitioners should note that the rule may apply to allegations of malpractice and does not require an allegation of conduct rising to the level of criminality, pursuant to Restatement [Third] of Law Governing Lawyers § 64, Comment c.

Case: Hélie v. McDermott, Will & Emery, NY Slip Op 09289 (1st Dept. 2008)

The opinion is here.

Statute of limitations.

Practice point: The statute of limitations cannot be asserted sua sponte by the court as a basis for denying an unopposed motion for a default judgment.

Practitioners should note that the statute of limitations must be pleaded, if at all, as an affirmative defense.

Case: Orix Fin. Servs., Inc. v. Haynes, NY Slip Op 09270 (1st Dept. 2008)

The opinion is here.

Cooperatives Law.

Practice point: Absent evidence of self-dealing, fraud or some other breach of fiduciary duty, a shareholder will not defeat the business judgment rule in disputing a coop board's decisions regarding repairs to the building.

Practitioners should note that, by refusing to pay assessments for major structural repairs, a plaintiff waives the claim for breach of the covenant of quiet enjoyment.

Case: Parker v. Marglin, NY Slip Op 09266 (1st Dept. 2008)

The opinion is here.

Disclosure.

Practice point: Pursuant to CPLR 3101(a), there must be full disclosure of whatever is material and necessary in the prosecution or defense of an action.

Practitioners should note that "material and necessary" is interpreted liberally to require disclosure of anything which bears on the controversy and which will help to sharpen the issues and reduce delays. The standard is usefulness and reason.

Case: Friel v. Papa, NY Slip Op 09028 (2d Dept. 2008)

The opinion is here.

Attorneys as parties to an action.

Practice point: An attorney who is a party to an action must support a pleading with an affidavit, notwithstanding CPLR 2106, which otherwise allows an attorney to submit an affirmation.

Practitioners should note that this deficiency will be fatal to the pleading.

Case: Finger v. Saal, NY Slip Op 09027 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: A plaintiff who pleads the defense of failure to state a cause of action will not win dismissal in the absence of a motion.

Practitioners should note that this motion may be made at any time.

Case: Butler v. Catinella, NY Slip Op 09018 (2d Dept. 2008)

The opinion is here.

Construing insurance policies.

Practice point: If the policy on its face is reasonably susceptible of only one meaning, a court is not free to alter the agreement. If there is any ambiguity, however, it must be construed in favor of the insured and against the insurer.

Practitioners should note that for an insurer to prevail on its interpretation of an ambiguous term, the insurer must demonstrate, in addition to reasonability, that its interpretation is the only fair one.

Case: Antoine v. City of New York, NY Slip Op 09010 (2d Dept. 2008)

The opinion is here.

Disclosure.

Practice point: While CPLR 3101(a) provides for full disclosure of whatever is material and necessary to prosecute an action, unlimited disclosure is not permitted.

Practitioners should note that, pursuant to CPLR 3103(a), a court may deny, limit, condition or regulate the use of any disclosure device so as to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person.

Case: Lacqua v. Staten Is. Univ. Hosp., NY Slip Op 08712 (2d Dept. 2008)

The opinion is here.

Snow and ice removal.

Practice point: An owner of property abutting a public sidewalk is not liable for pedestrian injuries arising out of the failure to remove snow and ice which naturally accumulates on the sidewalk, unless a statute or ordinance specifically imposes tort liability for not doing so.

Practitioners should note that, even absent such a statute or ordinance, there might be liability if the owner, or someone acting on the owner’s behalf, undertakes snow and ice removal efforts which make the naturally-occurring conditions more hazardous. The failure to remove all the snow and ice from the sidewalk does not constitute negligence.

Case: Cruz v. County of Nassau, NY Slip Op 08699 (2d Dept. 2008)

The opinion is here.

Constructive trusts.

Practice point: A cause of action to impose a constructive trust is governed by a six-year statute of limitations, which begins to accrue on the happening of the wrongful act giving rise to a duty of restitution.

Practitioners should note that, in determining what triggers the statute, wrongfully acquired property is held adversely from the date of acquisition. However, if the constructive trustee wrongfully withholds lawfully acquired property, it is held adversely from the date the trustee breaches or repudiates the agreement to transfer the property.

Case: Auffermann v. Distl, NY Slip Op 08689 (2d Dept. 2008)

The opinion is here.

Happy Thanksgiving.

Best wishes for a happy Thanksgiving to you and your family, and thank you for reading New York Law Notes year-round. We will be back tomorrow with another post.

Defamation.

Practice point: A public official-plaintiff’s claim will be dismissed unless it is alleged that defendant acted with actual malice, which means with knowledge that the statements at issue were false, or with reckless disregard of whether they were false. “Reckless disregard” is a term of art which means a high degree of awareness of probable falsity.

Practitioners should note that a private person-plaintiff may plead the lower standard of gross irresponsibility.

Case: Rivera v. Time Warner Inc., NY Slip Op 08539 (1st Dept. 2008)

The opinion is here.

Equitable actions.

Practice point: If the primary nature of a case is equitable and plaintiff's claimed damages are merely incidental thereto, there is no right to a jury trial, pursuant to CPLR 4101.

Practitioners should note that a counterclaim, even with a demand for damages, also is equitable in nature if it relates directly to the injunctive relief sought by plaintiff’s complaint.

Case: Ingenuit, Ltd. v. Harriff, NY Slip Op 08456 (2d Dept. 2008)

The opinion is here.

Notice of pendency.

Practice point: CPLR 6514(a) requires cancellation of a notice of pendency if service of a summons has not been completed within 30 days after the notice is filed, pursuant to CPLR 6512.

Practitioners should note that in multi-defendant cases, there is sufficient service if it is timely made on any one defendant with an ownership interest in the subject property.

Case: Deans v. Sorid, NY Slip Op 08448 (2d Dept. 2008)

The opinion is here.

Labor Law.

Practice point: Ladders are within the scope of § 200, which is a codification of the common-law duty of property owners and general contractors to provide workers with a safe place to work.

Practitioners should note that liability under the statute is governed by common-law negligence principles.

Case: Chowdhury v. Rodriguez, NY Slip Op 08441 (2d Dept. 2008)

The opinion is here.

Leave to amend.

Practice point: In exercising its discretion to grant leave to serve an amended pleading, the court will consider how long the amending party was aware of the facts on which the motion is predicated; whether a reasonable excuse for the delay is offered; and whether the other side will be prejudiced.

Practitioners should note that where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave to amend will be denied.

Case: Brooks v. Robinson, NY Slip Op 08439 (2d Dept. 2008)

The opinion is here.

Settling claims.

Practice point: An attorney has no implied power by virtue of the general retainer, standing alone, to compromise or settle a client's claim.

Practitioners should note that a general release and stipulation of discontinuance will be vacated, and the case restored, on evidence that plaintiff neither authorized nor consented to the settlement.

Case: Blakney v. Leathers, NY Slip Op 08437 (2d Dept. 2008)

The opinion is here.

Vehicle and Traffic Law §§ 1143 and 1160(e).

Practice point: A driver is not obligated to anticipate that a vehicle parked on the shoulder of a road will suddenly and unexpectedly move into a travel lane.

Practitioners should note that such an event will likely implicate the emergency doctrine, and the driver’s staying in his or her own lane and applying the brakes will be reasonable as a matter of law under this circumstance which is not of the driver’s own making.

Case: Albinowski v. Hoffman, NY Slip Op 08434 (2d Dept. 2008)

The opinion is here.

Service of process.

Practice point: A plaintiff establishes personal jurisdiction, pursuant to CPLR 308(2), when the process server delivered the summons with notice to a suitable person at defendant's place of business, and this person accepted the documents before handing them back and directing the process server to place them in defendant's mailbox.

Practitioners should note that service was valid even though plaintiff did not list the individual defendant's name on the mailing envelope, since the summons gave sufficient notice to defendant, an attorney, that he was being sued in his individual capacity.

Case: Pressley v. Shneyer, NY Slip Op 08412 (1st Dept. 2008)

The opinion is here.

Gift certificates.

Practice point: General Business Law § 396-i regulates gift certificates and gift cards, and, pursuant to i[3], requires that the terms and conditions shall be clearly and conspicuously stated thereon, including whether any fees are assessed against the balance.

Practitioners should note that while the statute does not expressly provide for a private right of action, there is nothing in the statutory language to indicate that the Legislature intended to abrogate any common-law remedy arising from alleged deceptive or improper practices concerning gift certificates or cards. In addition, a § 349 cause of action may be maintained as to all deceptive acts or practices declared to be unlawful, regardless of any other State statute.

Case: Llanos v. Shell Oil Co., NY Slip Op 08099 (2d Dept. 2008)

The opinion is here.

Commencing an action.

Practice point: The commencement of an action by plaintiff’s filing a notice of petition and a petition with a verified complaint is jurisdictionally sufficient.

Practitioners should note that plaintiff's confusion between the form of an action and the form of a special proceeding is not a ground for dismissal.

Case: Ling Fei Sun v. City of New York, NY Slip Op 08098 (2d Dept. 2008)

The opinion is here.

Municipal liability.

Practice point: A municipality owes to the public the absolute duty of keeping its streets in a reasonably safe condition.

Practitioners should note that, when it comes to traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision, and liability requires proof that the State's traffic design plan evolved without adequate study or lacked reasonable basis.

Case: Fan Guan v. State of New York, NY Slip Op 08089 (2d Dept. 2008)

The opinion is here.

Medical malpractice.

Practice point: To establish a prima facie case on liability, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred; (2) that the defendant breached that standard of care; and (3) that the breach was the proximate cause of plaintiff’s injury.

Practitioners should note that expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause.

Case: Deadwyler v. North Shore Univ. Hosp. at Plainview, NY Slip Op 08087 (2d Dept. 2008)

The opinion is here.

Collateral estoppel.

Practice point: A party will be estopped from relitigating an issue which was clearly raised in a prior action and which was decided against that party.

Practitioners should note that, in order to invoke the doctrine, the identical issue must necessarily have been decided in the prior action and it must be decisive of the present action. In addition, the party to be precluded must have had a full and fair opportunity to contest the prior determination.

Case: Comprehensive Med. Care of N.Y., P.C. v. Hausknecht, NY Slip Op 08084 (2d Dept. 2008)

The opinion is here.

Exposure to toxic substances.

Practice point: To maintain a cause of action for negligent infliction of emotional distress following exposure to a toxic substance, a plaintiff must establish both that there was exposure to a disease-causing agent and that there is a ‘rational basis' for plaintiff’s fear of contracting a disease.

Practitioners should note that the Court has construed ‘rational basis’ to mean the clinically-demonstrable presence of a toxin in plaintiff's body, or some other indication of a toxin-induced disease.

Case: Cleary v. Wallace Oil Co., Inc., NY Slip Op 08083 (2d Dept. 2008)

The opinion is here.

General Obligations Law.

Practice point: An agreement to exempt a lessor from its own negligence is void and unenforceable, pursuant to § 5-321.

Practitioners should note that where the liability is to a third party, the statute does not preclude enforcement of an indemnification provision in a commercial lease negotiated at arm's length between two sophisticated parties, when coupled with an insurance procurement requirement.

Case: Castano v. Zee-Jay Realty Co., NY Slip Op 08081 (2d Dept. 2008)

The opinion is here.

Notice of Claim.

Practice point: Leave to file a late Notice of Claim will be denied when, after a seven-month delay, petitioner fails to identify any documents, either from the police investigation or from the criminal proceedings, which would assist respondent in investigating a claim of negligence.

Pratcitioners should note that the fact that there was media coverage of the claim-related incident does not establish that respondent should have known about the incident or should have anticipated a claim of negligence.

Case: Matter of Bailey v. City of New York Hous. Auth., NY Slip Op 08025 (1st Dept. 2008)

The opinion is here.

Education Law.

Practice point: A petitioner's challenge to the termination of probationary employment under a physical education license will be dismissed if petitioner fails to establish that the termination was for a constitutionally impermissible purpose, in violation of a statute, or otherwise done in bad faith.

Practitioners should note that, even if petitioner were not given the 60-day statutory notice, which, pursuant to Education Law
§ 2573[1][a]), would require one day's pay for each day the notice is late, petitioner is not entitled to the payment when, on termination, petitioner immediately resumed duties at the same school and at the same rate of pay under the common branch license under which petitioner was fully tenured.

Case: Curcio v. New York City Dept. of Educ., NY Slip Op 08020 (1st Dept. 2008)

The opinion is here.

Municipal liability.

Practice point: The City is not a proper party to an action where plaintiff sustained injuries as a result of tripping and falling on public school grounds.

Practitioners should note that, although the 2002 amendments to the Education Law (L 2002, ch 91) give the mayor greater control over education and limit the Department of Education’s powers, they do not establish a basis to hold the City liable for this plaintiff’s personal injuries.

Case: Bailey v. City of New York, NY Slip Op 08003 (1st Dept. 2008)

The opinion is here.

Court of Claims Act.

Practice point: An otherwise timely claim will be dismissed if it is verified only by plaintiff’s attorney and thus is noncompliant with the verification requirement of § 8-b(4).

Practitioners should note that CPLR 205(a), which allows re-commencement of an action which was terminated not on the merits within six months of dismissal, does not apply to claims under § 8-b, the requirements of which must be strictly construed and the terms of which make no reference to the CPLR.

Case: Taylor v. State of New York, NY Slip Op 07976 (1st Dept. 2008)

The opinion is here.

You can find the statutory language here.

Labor Law.

Practice point: An accident falls within the scope of § 240(1) when there is evidence that plaintiff was struck by a falling object which could have been, but was not, adequately secured by one of the devices enumerated in the statute.

Practitioners should note that an alleged violation of Industrial Code 9 NYCRR §§ 23-5.1(c) is insufficiently specific to support a
§ 241(6) claim.

Case: Greaves v. Obayashi Corp., NY Slip Op 07970 (1st Dept. 2008)

The opinion is here.

You can find the Code's language here.

Fraud.

Practice point: A plaintiff fails to plead a cause of action for fraud with sufficient particularity, pursuant to CPLR 3016[b], merely by alleging that defendant's representations were false, absent factual support for that assertion, and without pleading any of the other elements of fraud.

Practitioners should note that the essential elements of a cause of action sounding in fraud are representation of a material existing fact, falsity, scienter, deception and injury.

Case: Caldwell v. Gumley-Haft L.L.C., NY Slip Op 07968 (1st Dept. 2008)

The opinion is here.

Duty of care.

Practice point: In a suit involving leased commercial property, defendant cannot be liable for plaintiff’s injuries absent evidence that defendant occupied, controlled or was responsible for maintaining the area where plaintiff fell.

Practitioners should note that defendant owed no duty to plaintiff to maintain the area outside the boundaries described in the lease.

Case: Kaplan v. New York Mercantile Exch., NY Slip Op 07964 (1st Dept. 2008)

The opinion is here.

Construction Law.

Practice point: If a building was constructed in compliance with code specifications and industry standards applicable at the time, the owner is under no legal duty to modify the building thereafter in the wake of changed standards.

Practitioners should note that, for a plaintiff seeking damages for injuries suffered allegedly because of negligent building design, the legal issue is not whether there was a way to construct the building so as to avoid any possibility of persons being hurt; it is whether the building’s design violated safety standards in effect at the time it was built.

Case: Hotaling v. City of New York, NY Slip Op 07951 (1st Dept. 2008)

The opinion is here.

Labor Law.

Practice point: Owners of one-family and two-family dwellings are exempt from statutory liability, pursuant to Labor Law §§ 240 and 241, if they contract for, but do not direct or control, work performed on their property.

Practitioners should note that, although the homeowner exemption does not apply where a one-family dwelling’s owner uses it exclusively for commercial purposes, the fact that there is a home office does not deprive an apartment of its essentially residential character.

Case: DeSabato v. 674 Carroll St. Corp., NY Slip Op 07856 (2d Dept. 2008)

The opinion is here.

Trusts and Estates Law.

Practice point: As a fiduciary, a trustee bears the duty of complete loyalty to the trust’s beneficiaries, regardless of the fact that the settlor's directions give the trustee a free hand.

Practitioners should note that a trustee is liable for a breach committed in bad faith, intentionally, or with reckless indifference to the interests of the beneficiaries.

Case: Boles v. Lanham, NY Slip Op 07848 (2d Dept. 2008)

The opinion is here.

Notice of Claim.

Practice point: On a motion to dismiss for failure to comply with General Municipal Law § 50-e[2], a defendant meets its burden by establishing that plaintiff failed to correctly identify the accident location.

Practitioners should note, however, that a court may, in its discretion, allow a mistaken notice of claim to be corrected as long as the mistake was made in good faith and the public corporation was not prejudiced thereby, pursuant to General Municipal Law § 50-e[6].

Case: Ming v. City of New York, NY Slip Op 07223 (2d Dept. 2008)

The opinion is here.

Labor Law.

Practice point: For purposes of a § 241(6) claim based on an accident on a loading dock, plaintiff’s reliance on an alleged violation of 12 NYCRR 23-2.1[a][1] is unavailing inasmuch as it specifically refers to a "passageway, walkway, stairway, or other thoroughfare."

Practitioners should note that a freight elevator is not a "material hoist" within the meaning of the Industrial Code at 12 NYCRR 23-6.1(d), 6.3(e)(3); 23-1.4[33].

Case: Barrios v. Boston Props. LLC, NY Slip Op 07579 (1st Dept. 2008)

The opinion is here.

Motion practice.

Practice point: Although motions to renew should be based on newly discovered facts which could not have been offered on the prior motion, courts have discretion to relax this requirement and grant the motion in the interest of justice.

Practitioners should note that, because the attorney’s affirmation properly explained why plaintiff’s medical expert's affirmation was unsigned and redacted, it was admissible, pursuant to CPLR 3101(d)(1)(i).

Case: Mattis v. Keen, Zhao, NY Slip Op 06935 (1st Dept. 2008)

The opinion is here.

Legal malpractice.

Practice point: On record evidence that defense counsel in the underlying case was authorized and prepared to settle, a finding that plaintiff had instructed its own counsel to effect a settlement would support a claim that the settlement opportunity was lost through malpractice.

Practitioners should note that, in this malpractice action, there was a fact question because of conflicting deposition testimony and affidavits as to whether plaintiff had instructed defendants to work to settle the underlying case.

Case: Silva v. Worby, Groner, Edelman, LLP, NY Slip Op 07071 (1st Dept. 2008)

The opinion is here.

Negligence.

Practice point: A defendant cannot be negligent, as a matter of law, when it merely lent its name to the bicycle race during which plaintiff-spectators were struck by the three-wheel scooter operating as one of the pace vehicles.

Practitioners should note that, absent control over the race, defendant had no duty of care.

Case: Chittick v. USA Cycling Inc., NY Slip Op 07043 (1st Dept. 2008)

The opinion is here.

Motion practice.

Practice point: In order to obtain relief from a judgment or order based on an excusable default, pursuant to CPLR § 5015(a)(1), a movant must offer a reasonable excuse for failing to appear and must demonstrate that the case or defense has merit.

Practitioners should note that the assessment of the sufficiency of the proffered excuse and the adequacy of merit rests with the sound discretion of the court.

Case: Carroll v. Nostra Realty Corp., NY Slip Op 07041 (1st Dept. 2008)

The opinion is here.

Motion practice.

Practice point: In opposition to a motion for summary judgment, a plaintiff may not raise a theory of liability not pleaded in the notice of claim, complaint or bill of particulars.

Practitioners should note that a plaintiff will be precluded from offering trial evidence regarding a theory of liability not set forth in the notice of claim.

Case: Sutin v. Manhattan & Bronx Surface Tr. Operating Auth., NY Slip Op 07032 (1st Dept. 2008)

The opinion is here.

Court holiday.

Today is a New York State Courts holiday and so there is no post on New York Law Notes.

The Courts reopen tomorrow and there will be a new post, as there is every Court day.

In the meantime, I hope you will enjoy today's day-off!

Attorneys' fees.

Practice point: Attorneys' fees and disbursements are incidents of litigation, and a prevailing party may not collect unless the award is authorized by agreement between the parties, by statute, or by court rule.

Practitioners should note that, even if there is sufficient authority for an attorney’s fee, the award is premature as long as the matter is still before the court.

Case: Siamos v. 36-02 35th Ave. Dev., LLC, NY Slip Op 06978 (2d Dept. 2008)

The opinion is here.

Defective sidewalks.

Practice point: The City can establish its entitlement to judgment as a matter of law by offering a municipal code enforcement officer's deposition testimony that a search of the City's prior written notice logbook turned up no record of the required notice of the alleged defective sidewalk condition.

Practitioners should note that, after a repair, the recurrence of an alleged sidewalk defect does not abrogate the need for prior written notice.

Case: McCarthy v. City of White Plains, NY Slip Op 06969 (2d Dept. 2008)

The opinion is here.

Dog bites.

Practice point: A dog owner incurs no liability for injuries which allegedly were caused by a domestic animal with no known vicious propensities.

Practitioners should note that, on sufficient facts, there could be a cause of action for negligent supervision of an injured infant-plaintiff.

Case: Frank v. Eaton, NY Slip Op 06959 (2d Dept. 2008)

The opinion is here.

Legal malpractice.

Practice point: A cause of action does not sound in legal malpractice based on defendant's representation of plaintiff in a criminal action when the conviction has not been successfully challenged.

Practitioners should note that, even when an appeal is pending, pursuant to CPL 440, there is no cause of action unless plaintiff ultimately succeeds in having the underlying conviction vacated and the indictment dismissed.

Case: Daly v. Peace, NY Slip Op 06955 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: In light of the strong public policy favoring the resolution of cases on the merits, a court has the discretion to vacate a default arising from a defendant's delay in serving an answer, pursuant to CPLR 2004 and 3012(d), where there is a lack of prejudice to the plaintiff by the short delay, a lack of willfulness on the part of the defendant, and a meritorious defense.

Practitioners should note that the right to a direct appeal from an intermediate order terminates with the entry of a judgment.

Case: Cortlandt Healthcare, LLC v. Gantt, NY Slip Op 06953 (2d Dept. 2008)

The opinion is here.

Assumption of the risk.

Practice point: An infant plaintiff cannot be said, as a matter of law, to have assumed the risk of being injured by the defective condition of a pothole on a public street when he was riding merely for fun, and using the bicycle only as a means of transportation.

Practitioners should note that when a defendant fails to establish its prima facie entitlement to judgment as a matter of law, defendant’s motion will be denied regardless of the sufficiency of plaintiff’s opposition papers.

Case: Caraballo v. City of Yonkers, NY Slip Op 06949 (2d Dept. 2008)

The opinion is here.

Discovery.

Practice point: While Domestic Relations Law § 235(1) mandates that all papers filed in a matrimonial matter are confidential, a court may order the disclosure of otherwise confidential materials needed to defend against a clam of legal malpractice, including filed records which may provide evidence to rebut plaintiff's contentions of liability and the extent of plaintiff’s financial loss.

Practitioners should note, however, that the court will properly deny a motion to compel the disclosure of tax returns.

Case: Kodsi v. Gee, NY Slip Op 06938 (1st Dept. 2008)

The opinion is here.

Negligence.

Practice point: There is no physician-patient relationship where the examination is conducted solely for the purpose of rendering an evaluation as a litigation support service for an insurer, and a resulting cause of action sounds in negligence not medical malpractice, with a three-year statute of limitations.

Practitioners should note that any prior Second Department decisions which hold or indicate otherwise are no longer to be followed.

Case: Bazakos v. Lewis, NY Slip Op 07081 (2d Dept. 2008)

The opinion is here.

Disinterment.

Practice point: A body may be disinterred on consent of the cemetery corporation, the plot’s owners, and the surviving spouse, children, and parents of the deceased, pursuant to N-PCL § 1510[e]. However, in the absence of consent, a court may grant permission to disinter upon a showing of a good and substantial reason. A petitioner's demonstration that the deceased spouse’s wish was that they be buried together, and that petitioner cannot get appropriate assurances from the plot’s other owners, is enough.

Case: Pring v. Cemetery, NY Slip Op 06840 (2d Dept. 2008)

The opinion is here.

Labor Law.

Practice point: While the reach of § 240(1) is not limited to work performed on actual construction sites, the injured plaintiff must have been working on the erecting, demolishing, repairing, altering, painting, cleaning or pointing of a building or structure. To succeed on a motion to dismiss because the statute does not apply, a defendant must offer evidentiary proof, in admissible form, as to the nature of the work plaintiff was performing at the time of the accident, and the manner in which the accident occurred.

Case: Valdivia v. Consolidated Resistance Co. of Am., Inc., NY Slip Op 06826 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: A motion for leave to renew a motion to reinstate a note of issue will be granted when it is supported by a properly framed certificate of readiness and by an affidavit, based on first-hand knowledge, showing that there is merit to the action; specifying why the note of issue was vacated; offering meritorious reasons for the reinstatement; and establishing that the case is ready for trial.

Case: Suburban Restoration Co., Inc. v. Viglotti, NY Slip Op 06823 (2d Dept. 2008)

The opinion is here.

Service of process.

Practice point: The mere denial of receipt is insufficient to rebut the presumption of proper service created by a properly executed affidavit of service.

Case: Malik v. Noe, NY Slip Op 06809 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: No appeal lies from an order denying a motion for leave to reargue.

Case: Levy v. Kung Sit Huie, NY Slip Op 06807 (2d Dept. 2008)

The opinion is here.

Jury verdicts.

Practice point: A jury’s finding that a party was negligent but that the negligence was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the negligence and causality are so interwoven as to make it logically impossible to find one without the other. If the verdict can be reconciled with any reasonable view of the evidence, it will be presumed that the jury adopted that view.

Case: Jaffier v. Wilson, NY Slip Op 06802 (2d Dept. 2008)

The opinion is here.

Discovery.

Practice point: A plaintiff waives an objection to the adequacy and timeliness of disclosure by filing a note of issue and certificate of readiness prior to moving for the imposition of a discovery sanction, pursuant to CPLR 3126.

Case: Iscowitz v. County of Suffolk, NY Slip Op 06801 (2d Dept. 2008)

The opinion is here.

Assumption of the risk.

Practice point: A voluntary participant in a sport assumes the known risks normally associated with it. However, participants do not assume the risks of reckless or intentional conduct or concealed or unreasonably increased risks. While being struck in the head by a baseball is a known risk inherent in the sport, a plaintiff's deposition testimony, along with affidavits of plaintiff’s teammates, may raise a triable issue of fact as to whether an alleged cracked batter's helmet unreasonably increased the risk of injury.

Case: Fithian v. Sag Harbor Union Free School Dist., NY Slip Op 06798 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction; 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. However, bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference.

Case: Breytman v. Olinville Realty, LLC, NY Slip Op 06787 (2d Dept. 2008)

The opinion is here.

Contracts.

Practice point: A contracting party’s exercise of a discretionary right may breach the implied obligation of good faith and fair dealing if it frustrates the basic purpose of the agreement and deprives the other party of its benefits under the contract.

Case: C & E 608 Fifth Ave. Holding, Inc. v. Swiss Ctr., Inc., NY Slip Op 06743 (1st Dept. 2008)

The opinion is here.

Labor Law.

Practice point: A motion to dismiss a cause of action under
§ 240(1) and § 241(6) must be denied when the record does not establish, as a matter of law, that plaintiff's acts were the sole proximate cause of the accident. The court will consider evidence that the unsecured ladder on which the injured worker was standing collapsed, and that no other safety devices were provided.

Case: Vargas v. NYCTA, NY Slip Op 06740 (1st Dept. 2008)

The opinion is here.

Notice of Claim.

Practice point: A court may grant a petition for leave to serve an amended notice of claim, pursuant to General Municipal Law § 50-e(6), if the original notice of claim was not sworn to by or on behalf of the petitioner, pursuant to General Municipal Law § 50-e[2].

Case: Figgs v. County of Suffolk, NY Slip Op 06706 (2d Dept. 2008)

The opinion is here.

Indemnification.

Practice point: A party is entitled to contractual indemnification when the intention to indemnify is clearly implied from the language and purposes of the entire agreement and the surrounding circumstances.

Case: Torres v. LPE Land Dev. & Constr., Inc., NY Slip Op 06702 (2d Dept. 2008)

The opinion is here.

Products liability.

Practice point: For a judgment as a matter of law in an action to recover for injuries allegedly caused by a defective product, a defendant must establish that the product performed as intended, or that plaintiff’s injuries likely were caused by something not attributable to a defect in the product’s design or manufacture.

Case: Calandra v. Crane Plumbing, NY Slip Op 06692 (2d Dept. 2008)

The opinion is here.

Employment Law.

Practice point: It is settled that, in deciding the issue of special employment, a putative special employer’s title, e.g., a managing agent, is not controlling. Instead, courts will look to the actual working relationship between the employer and the employee.

Case: Bautista v. Frankel Realty, Inc., NY Slip Op 06685 (1st Dept. 2008)

The opinion is here.

Motion practice.

Practice point: A summary judgment motion must include a complete set of pleadings and a supporting affidavit, pursuant to CPLR 3212(b).

Case: Zellner v. Tarnell, NY Slip Op 06558 (2d Dept. 2008)

The opinion is here.

Legal malpractice.

Practice point: The settlement of an underlying action, in and of itself, does not preclude a subsequent action for legal malpractice if the settlement was effectively compelled by the mistakes of counsel.

Case: Levitt & Assoc. v. Balkin, NY Slip Op 06640 (2d Dept. 2008)

The opinion is here.

Duty to warn.

Practice point: A landowner has a duty to warn of a dangerous condition where the hazard is latent.

Case: Roros v. Oliva, NY Slip Op 06637 (2d Dept. 2008)

The opinion is here.

Municipal liability.

Practice point: A municipality is immune from liability arising from a claim that it negligently designed the sewerage system, but not from a claim that it negligently maintained the sewerage system, since this implicates conduct which is ministerial in nature.

Case: Moore v. City of Yonkers, NY Slip Op 06636 (2d Dept. 2008)

The opinion is here.

Summary judgment.

Practice point: A summary judgment motion may not be made more than 120 days after the filing of the note of issue, except with leave of court on good cause shown, pursuant to CPLR 3212(a).

Case: Lyons v. Donnelly, NY Slip Op 06633 (2d Dept. 2008)

The opinion is here.

Vicarious liability.

Practice point: A private attending physician’s affiliation with a hospital or other medical facility, not amounting to employment, is generally insufficient to impute a doctor's negligent conduct to the hospital or the medical facility.

Case: Keitel v. Kurtz, NY Slip Op 06632 (2d Dept. 2008)

The opinion is here .

Res judicata.

Practice point: A disposition on the merits bars litigation between the same parties, or those in privity with them, on a cause of action arising out of the same transaction or series of transactions as a cause of action which was, or which could have been, raised in a prior proceeding.

Case: Barash v. Northern Trust. Corp., NY Slip Op 06628 (2d Dept. 2008)

The opinion is here.

Medical malpractice.

Practice point: The required elements of proof in a medical malpractice action are (1) a deviation or departure from good and accepted standards of medical practice, and (2) evidence that the departure was a proximate cause of plaintiff’s injury.

Case: Elias v. Bash, NY Slip Op 06587 (2d Dept. 2008)

The opinion is here.

School Law.

Practice point: A school has a duty to supervise its students with the same degree of care as an ordinarily prudent parent in comparable circumstances.

Case: Doe v. Department of Education of the City of New York, NY Slip Op 06586 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: A motion to strike an answer, pursuant to CPLR 3126, will be denied if defendant did not have prior notice that this sanction was imminent.

Case: Sidelev v. Tsal-Tsalko, NY Slip Op 05750 (1st Dept. 2008)

The opinion is here.

Dog bites.

Practice point: To recover in strict liability for a dog bite, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of them. Admissible evidence would include a prior attack; the dog's tendency to growl, snap, or bare its teeth; the way the dog was restrained; and the fact that the dog was kept as a guard dog.

Case: Grubb v. Healy, NY Slip Op 05044 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: If a matter is stricken from the trial calendar and designated as inactive, but not dismissed, a plaintiff seeking to restore is not required to submit an affidavit of merit or an explanation as to why the case was removed from active status.

Case: Ross v. Brookdale Univ. Hosp. & Med. Ctr., NY Slip Op 06597 (2d Dept. 2008)

The opinion is here.

Civil contempt.

Practice point: To sustain a determination of civil contempt, a court must find that the alleged contemnor violated the court’s lawful and express order, and that, as a result, a party to the litigation was prejudiced, pursuant to Judiciary Law § 753[A][3].

Case: Village of Plandome Manor v. Ioannou, NY Slip Op 06594 (2d Dept. 2008)

The opinion is here.

Statute of limitations.

Practice point: The statute of limitations for tort actions against the MTA is one year and 30 days, pursuant to Public Authorities Law § 1276[1],[2]. For negligence actions against the Transit Authority, the statute is one year and 90 days, pursuant to Public Authorities Law § 1212[3].

Case: Sullivan v. Atlantic Paratransit of N.Y.C., Inc., NY Slip Op 05920 (2d Dept. 2008)

The opinion is here.

Quiet enjoyment.

Practice point: A plaintiff may properly plead a cause of action for breach of the covenant of quiet enjoyment by alleging a constructive eviction, namely, because the cooperative failed to make necessary repairs, the conditions in plaintiff’s home compelled plaintiff to move out.

Case: Granirer v. Bakery, Inc., NY Slip Op 06582 (1st Dept. 2008)

The opinion is here.

Summary judgment.

Practice point: A court may set the time within which a party may move for summary judgment, pursuant to CPLR 3212(a), through a so-ordered stipulation.

Case: Ford v. City of New York, NY Slip Op 06579 (1st Dept. 2008)

The opinion is here.

Hearsay.

Practice point: Even if unrelated to diagnosis or treatment, a hearsay entry in a hospital record may be admissible at trial if the entry is inconsistent with a party’s position.

Case: Coker v. Bakkal Foods, Inc., NY Slip Op 05876 (2d Dept. 2008)

Click here for the opinion.

Labor Law.

Practice point: A plaintiff’s failure to identify, in the Complaint or Bill of Particulars, an alleged Code violation is not necessarily fatal to a Labor Law § 241(6) cause of action.

Case: Galarraga v. City of New York, NY Slip Op 06545 (2d Dept. 2008)

Click here for the opinion.

Employment Law.

Practice point: In stating a claim of vicarious liability, a plaintiff must demonstrate that the employer had knowledge of, and acquiesced in or condoned, the discriminatory conduct. An employer’s failure to act is the same as affirmative conduct.

Case: Bianco v. Flushing Hospital Med. Ctr., NY Slip Op 06542 (2d Dept. 2008)

Click here for the opinion.

Fee disputes.

Practice point: The Fee Dispute Resolution Program does not apply when the amount in dispute exceeds $50,000, pursuant to 22 NYCRR 137.1[b][2].

Case: Goldman & Greenbaum, P.C. v. Filippatos, NY Slip Op 05749 (1st Dept. 2008)

Click here for the opinion.

Filing retainer statements.

Practice point: An attorney’s belated filing of a retainer statement, pursuant to 22 NYCRR § 603.7(a)(3), is insufficient to preserve the right to recover legal fees.

Case: Fishkin v. Taras, NY Slip Op 06505 (1st Dept. 2008)

Click here for the opinion.

Untimely pleadings.

Practice point: The City's excuse for its late answer, namely, that it receives thousands of summonses each month, is insufficient to compel plaintiff to accept the pleading, pursuant to CPLR 3012(d).

Case: Holloman v. City of New York, NY Slip Op 05480 (2d Dept. 2008)

Click here for the opinion.

Privileged statements.

Practice point: Statements made by parties, attorneys and witnesses will be absolutely privileged only if they are made in the course of a judicial or quasi-judicial proceeding and are material and pertinent to the issue in dispute.

Case: Ingber v. Mallilo, NY Slip Op 05481 (2d Dept. 2008)

Click here for the opinion.

Legal malpractice.

Practice point: An action alleging legal malpractice is deemed to accrue on the date the malpractice was committed, not when it was discovered.

Case: Hasty Hills Stables, Inc. v. Dorfman, Lynch, Knoebel & Conway, LLP, NY Slip Op 05479 (2d Dept. 2008)

Click here for the opinion.

Rear-end collisions.

Practice point: A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence, and the moving vehicle's operator is required to offer an adequate non-negligent explanation for the accident.

Case: Arias v. Rosario, NY Slip Op 05467 (2d Dept. 2008)

Click here for the opinion.

Tortious interference.

Practice point: An agreement terminable at will may be tortiously interfered with through malicious or wrongful conduct.

Case: Smith v. Meridian Tech., Inc., NY Slip Op 05677 (2d Dept. 2008)

Click here for the opinion.

Retainer agreements.

Practice point: An attorney's failure to comply with the rules on retainer agreements, pursuant to 22 NYCRR 1215.1, does not preclude the recovery of legal fees for services provided.

Case: Nicoll & Davis LLP v. Ainetchi, NY Slip Op 05763 (1st Dept. 2008)

Click here for the uncorrected opinion.

Disability discrimination.

Practice point: A complaint states a prima facie case of disability discrimination under Executive Law § 296 if the plaintiff suffers from a disability and the disability engendered the behavior for which plaintiff was discriminated against in the terms, conditions, or privileges of plaintiff's employment.

Case: Staskowski v. Nassau Community College, NY Slip Op 06369 (2d Dept. 2008)

Click here for the uncorrected opinion.

Appeals as of right.

Practice point: No appeal lies as of right from that part of an order which does not decide a motion made on notice, pursuant to CPLR 5701[a][2].

Case: Mohler v. Nardone, NY Slip Op 06361 (2d Dept. 2008)

Click here for the uncorrected opinion.

Expert witness testimony.

Practice point: If the issue of an allegedly unsafe condition is within the common knowledge and experience of jurors, a plaintiff is under no obligation to rebut a defendant’s expert’s conclusions with expert testimony of its own.

Case: Infante v. Jerome Car Wash, NY Slip Op 05364 (1st Dept. 2008)

Click here for the uncorrected opinion.

Negligent parental supervision.

Practice point: New York does not recognize a cause of action based on negligent parental supervision.

Case: Mazza v. Ed Tompkins Plumbing Corp., NY Slip Op 06360 (2d Dept. 2008)

Click here for the uncorrected opinion.

Statute of limitations.

Practice point: Pursuant to CPLR 3211[a][5], a plaintiff who has timely interposed a claim against one defendant may be barred by the statute of limitations from adding another defendant, as a matter of right, pursuant to CPLR 3025[a]; 1003.

Case: Hirsh v. Perlmutter, NY Slip Op 06359 (2d Dept. 2008)

Click here for the uncorrected opinion.

Alternative dispute resolution.

Practice point: Arbitration and other alternative procedures for resolving disputes are creatures of contract, and while the law favors such alternatives to litigation, a party will not be denied judicial resolution of a controversy unless there is a governing provision requiring alternative dispute resolution.

Case: FCI Group, Inc. v. City of New York, NY Slip Op 06352 (1st Dept. 2008)

Click here for the uncorrected opinion.

Service.

Practice point: Pursuant to CPLR 317, a defendant who has been served with a summons other than by personal delivery may seek relief from a default upon a showing that it did not receive notice of the summons in time to defend, and that it has a meritorious defense.

Case: Fatima v. Twenty Seven-Twenty Four Realty Corp., NY Slip Op 06284 (2d Dept. 2008)

Click here for the uncorrected opinion.

Premium fees.

Practice point: An attorney's premium fee is enforceable if the retainer agreement satisfies the plain language and specificity requirements of 22 NYCRR 1400.3(8). The client must be advised beforehand as to how such a fee will be calculated, e.g., as a flat amount, a fixed percentage or a reasonable percentage of the total hourly charges incurred.

Case: Sheresky Aronson & Mayefsky, LLP v.Whitmore, NY Slip Op 06175 (1st Dept. 2008)

Click here for the uncorrected opinion.

Privacy law.

Practice point: New York State does not recognize the common-law tort of invasion of privacy except to the extent it comes within the ambit of Civil Rights Law §§ 50 and 51. These statutes protect against the appropriation of a plaintiff's name or likeness for a defendant's benefit and create a cause of action in favor of any person whose name, portrait or picture is used for advertising purposes or for trade without the plaintiff's consent.

Case: Farrow v. Allstate Insurance Co., NY Slip Op 06283 (2d Dept. 2008)

Click here for the uncorrected opinion.

Summary judgment motions.

Practice point: A party should be given a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment.

Case: Richardson v. New York City Transit Authority, NY Slip Op 04675 (2d Dept. 2008)

Click here for the uncorrected opinion.

Property.

Practice point: The title owner of property encumbered by a mortgage or a tax lien has the right to redeem the property at any time prior to the actual sale under a judgment of foreclosure.

Case: NYCTL 1996-1 Trust v. Moore, NY Slip Op 04667 (2d Dept. 2008)

Click here for the uncorrected opinion.

Statute of limitations.

Practice point: Actions for malpractice against nonmedical professionals are governed by the three-year statute of limitations, pursuant to CPLR 214(a)(6).

Case: M.G. McLaren, P.C. v. Massand Eng'g, L.S., P.C., NY Slip Op 04661 (2d Dept. 2008)

Click here for the uncorrected opinion.

Specific performance.

Practice point: When requiring specific performance on a contract for the sale of real property, a seller's time-of-the-essence letter is a nullity unless it gives the purchaser sufficient time to perform.

Case: Iannucci v. 70 Wash. Partners, LLC, NY Slip Op 04653 (2d Dept. 2008)

Click here for the uncorrected opinion.

Labor Law.

Practice point: Pursuant to Labor Law § 240(1), the failure to provide any protective devices for workers establishes, as a matter of law, an owner's or contractor's liability.

Case: Hamilton v. Kushnir Realty, NY Slip Op 04650 (2d Dept. 2008)

Click here for the uncorrected opinion.

Non-compete agreements.

Practice point: Covenants not to compete will be enforced only if they are reasonably limited as to time, geographic area and scope; are necessary to protect the employer's legitimate interests; are not harmful to the public; and are otherwise not unduly burdensome.

Case: Ricca v. Ouzounian, NY Slip Op 04852 (2d Dept. 2008)

Click here for the uncorrected opinion.

Breach of contract.

Practice point: Absent a duty on which tort liability might be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty.

Case: Rakylar v. Washington Mutual Bank, NY Slip Op 04850 (2d Dept. 2008)

Click here for the uncorrected opinion.

School law.

Practice point: Schools are not strictly liable for every thoughtless or careless act by which one student may injure another. To recover for injuries caused by another student, a plaintiff must establish that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could reasonably have been anticipated.

Case: Paca v. City of New York, NY Slip Op 04848 (2d Dept. 2008)

Click here for the uncorrected opinion.

Mechanic's liens.

Practice point: In order to maintain and enforce a mechanic's lien, a plaintiff must demonstrate that the defendant consented to the work performed on its property, pursuant to Lien Law § 3. The consent cannot be mere acquiescence and benefit, but must be some affirmative act or course of conduct establishing confirmation.

Case: Modern Era Construction, Inc. v. Shore Plaza, LLC, NY Slip Op 04847 (2d Dept. 2008)

Click here for the uncorrected opinion.

Attorney's fees.

Practice point: Where a lease provision gives a landlord the right to recover attorney's fees, those fees must be reasonable, considering factors such as time spent on the case, the difficulties involved, the nature of the services rendered, the amount in dispute, the attorney's professional standing and the results obtained.

Case: Miller Realty Assoc. v. Amendola, NY Slip Op 04846 (2d Dept. 2008)

Click here for the uncorrected opinion.

Contracts.

Practice point: While a contract may be voided and a party may recover damages when it establishes that it was compelled to agree because of a wrongful threat by the other party, there is no actionable duress where the alleged menace was to exercise a legal right.

Case: Madey v. Carmen, NY Slip Op 04844 (2d Dept. 2008)

Click here for the uncorrected opinion.

Discovery.

Practice point: Documents generated in connection with the performance of a medical or quality assurance review, pursuant to Education Law § 6527(3), or which are required by the department of health, pursuant to Public Health Law § 2805-l, are ordinarily not discoverable.

Case: Fray v. Fulton Commons Care Ctr., Inc., NY Slip Op 04831 (2d Dept. 2008)

Click here for the uncorrected opinion.

Home improvement contractors.

Practice point: Courts strictly construe the licensing requirements for home improvement contractors, pursuant to Administrative Code of the City of New York § 20-387(a), and public policy prohibits an unlicensed home improvement contractor from recovering either in contract or in quantum meruit.

Case: Metrobuild Assoc., Inc. v. Nahoum, NY Slip Op 04625 (1st Dept. 2008)

Click here for the uncorrected opinion.

Actions in equity.

Practice point: In an action sounding in equity, the recovery of interest is within the court's discretion, pursuant to CPLR 5001[a].

Case: Dayan v. York, NY Slip Op 04827 (2d Dept. 2008)

Click here for the uncorrected opinion.

Preclusion of expert testimony.

Practice point: Preclusion for failure to comply with CPLR 3101(d) is improper unless there is evidence of intentional or willful failure to disclose and a showing of prejudice.

Case: Cruz v. Gustitos, NY Slip Op 04826 (2d Dept. 2008)

Click here for the uncorrected opinion.

Failure to communicate medical findings.

Practice point: A defendant-physician may be held liable for ordinary negligence for a failure to communicate significant medical findings to a patient.

Case: Bennett v. Long Is. Jewish Med. Ctr., NY Slip Op 04823 (2d Dept. 2008)

Click here for the uncorrected opinion.

Defective products.

Practice point: Whether pleading in strict products liability, breach of warranty or negligence, a consumer-plaintiff has the burden of showing that the product's defect was a substantial factor in causing the alleged injury, and proof of injury, standing alone, is insufficient to prove that the product was defective for its intended use.

Case: Beckford v. Pantresse, Inc., NY Slip Op 04822 (2d Dept. 2008)

Click here for the uncorrected opinion.

Statute of Limitations.

Practice point: The tolling of the statute of limitations for the alleged disability of insanity may not extend the limitations period beyond ten years after the cause of action accrues, pursuant to CPLR 208.

Case: Santo B. v. Roman Catholic Archdiocese of N.Y., NY Slip Op 04821 (2d Dept. 2008)

Click here for the uncorrected opinion.

Mortgage contingency clauses.

Practice point: Where a contract for the sale of real property contains a mortgage contingency clause, purchasers are entitled to recover their down payment if the mortgage is not approved, as long as they made a genuine effort to secure mortgage financing and acted in good faith.

Case: Astrada v. Archer, NY Slip Op 04819 (2d Dept. 2008)

Click here for the uncorrected opinion.

Retaining liens.

Practice point: If discharged for cause, an attorney is not entitled either to a retaining lien or compensation.

Case: Alami v. Volkswagen of America, NY Slip Op 04817 (2d Dept. 2008)

Click here for the uncorrected opinion.

General Obligations Law § 395-b.

Practice point: There is no private right of action based on this statute which prohibits premises' owners or managers from knowingly permitting installation of a viewing device "for the purpose of surreptitiously observing the interior of any fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to guests or patrons in a motel, hotel or inn."

Case: Thomas v. Northeast Theatre Corp., NY Slip Op 04778 (1st Dept. 2008)

Click here for the uncorrected opinion.

Written releases.

Practice point: General Obligations Law § 5-326 does not invalidate a release executed by a New York City Marathon runner, since the entry fee is for participation in the marathon, and is not an admission fee allowing the runner to use the City-owned public roadways over which the marathon is run.

Case: Brookner v. New York Roadrunners Club, NY Slip Op 04638 (2d Dept. 2008)

Click here for the uncorrected opinion.

Prior written notice.

Practice point: A municipality with a prior written notice statute is not liabile for injuries caused by an improperly maintained roadway, absent the notice, unless (1) the municipality created the defect through an affirmative act of negligence, or (2) the municipality derived a special benefit from a special use of the roadway.

Case: Bogorova v. Village of Atlantic Beach, NY Slip Op 04637 (2d Dept. 2008)

Click here for the uncorrected opinion.

Labor Law.

Practice point: A plaintiff's rewiring of defendant's telephone system constitutes an altering of the premises, which falls within the ambit of construction work, pursuant to Labor Law § 241(6).

Case: Becker v. ADN Design Corp., NY Slip Op 04634 (2d Dept. 2008)

Click here for the uncorrected opinion.

Labor Law.

Practice point: The relationship necessary for Labor Law liability depends on whether the plaintiff was "permitted or suffered to work" on the premises, pursuant to Labor Law § 2[7], in fulfillment of an obligation, even if the benefit bestowed in exchange for the work was nonmonetary, pursuant to Labor Law § 2[5].

Case: Aloise v. Saulo, NY Slip Op 04629 (2d Dept. 2008)

Click here for the uncorrected opinion.

Administrative Law.

Practice point: At a disciplinary hearing on allegations of workplace violence, 911 recordings are admissable since they are not official records relating to the employee's arrest or prosecution, and thus are not subject to the sealing statute, pursuant to CPL 160.50.

Case: Dockery v. New York City Hous. Auth., NY Slip Op 04753 (1st Dept. 2008)

Click here for the uncorrected opinion.

Service of process.

Practice point: A plaintiff can establish personal jurisdiction, pursuant to CPLR 308(2), when the process server delivers the summons with notice to a security guard at defendant's place of business, and also mails a copy to defendant's place of employment.

Case: Schorr v. Persaud, NY Slip Op 04440 (1st Dept. 2008)

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Labor Law § 240(1)

Practice point: There is no Labor Law § 240(1) liability when a worker, who had been properly equipped with safety devices, is injured after stepping into a hole in the sidewalk while exiting the bridge he had been painting.

Case: Andrade v. Triborough Bridge & Tunnel, NY Slip Op 04437 (1st Dept. 2008)

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Article 81.

Practice point: An annulment of marriage is an available remedy in an article 81 proceeding.

Case: Kaminester v. Foldes, NY Slip Op 04557 (1st Dept. 2008)

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The "storm in progress" rule.

Practice point: A property owner is not liable for accidents resulting from the accumulation of snow and ice on its premises until, after the storm has passed, the owner has had adequate time to ameliorate the hazards caused by the storm.

Case: Marchese v. Skenderi, NY Slip Op 04326 (2d Dept. 2008)

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Change of venue.

Practice point: A defendant's timely motion to change venue is properly noticed and heard in the county which defendant specifies as proper, pursuant to CPLR 511(a),(b).

Case: Kuzmin v. Nevsky, NY Slip Op 04324 (2d Dept. 2008)

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Adverse possession.

Practice point: If a municipality owns property in its governmental capacity, it cannot lose title through adverse possession.

Case: Gallo v. City of New York, NY Slip Op 04316 (2d Dept. 2008)

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The emergency doctrine.

Practice point: The emergency doctrine provides that when a person is faced with a sudden and unexpected situation which is not of the person's own making, and which leaves little or no time for deliberation, no negligence will attach if the person took reasonable and prudent action.

Case: Francis v. Guzman, NY Slip Op 04315 (2d Dept. 2008)

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Fraud.

Practice point: Liability for fraud may be premised on knowing participation in a scheme to defraud, even if that participation does not by itself suffice to constitute a fraud.

Case: Danna v. Malco Realty, Inc., NY Slip Op 04309 (2d Dept. 2008)

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Negligence claims against the State of New York.

Practice point: The State of New York is not an insurer of the safety of its roads and no liability will attach unless the State's alleged negligence in maintaining its roads in a reasonable condition is a proximate cause of the accident.

Case: Carlo v. State of New York, NY Slip Op 04305 (2d Dept. 2008)

Equitable estoppel.

Practice point: Equitable estoppel will bar the assertion of the Statute of Limitations as an affirmative defense when it was the defendant's wrongdoing which caused the delay between the accrual of the cause of action and the commencement of the legal proceeding.

Case: Bevinetto v. Plotnick, NY Slip Op 04302 (2d Dept. 2008)

Conditions precedent.

Practice point: A contractual duty will not be construed as a condition precedent absent clear language showing that the parties intended to make it a such a condition.

Case: Ashkenazi v. Kent South Associates, NY Slip Op 04300 (2d Dept. 2008)

Business judgment rule.

Practice point: The business judgment rule, which applies to condominium boards, prohibits judicial inquiry into the actions of the board as long as it acts for the condominium's purpose, within its authority and in good faith.

Case: Acevdeo v. Town N Country Condominium, NY Slip Op 04295 (2d Dept. 2008)

Labor Law § 240(1)

Practice point: An object falling from a minuscule height is not the type of elevation-related injury that the statute was intended to protect against. Moreover, for the statute to be implicated, the object must have been in the process of being hoisted or secured when it fell because of inadequate safety devices.

Case: Cambry v. Lincoln Gardens, NY Slip Op 04047 (2d Dept. 2008)

Abuse of process.

Practice point: Abuse of process is an intentional tort and, therefore, is governed by a one-year statute of limitations, pursuant to CPLR 215.

Case: Benyo v. Sikorjak, NY Slip Op 04044 (2d Dept. 2008)

Bifurcation.

Practice point: Where there are complex issues of liability and damages, bifurcation is appropriate because it may help in reaching a fair and expeditious resolution, pursuant to 22 NYCRR 202.42[a].

Case: Sommer v. Pierre, NY Slip Op 04219 (1st Dept. 2008)

Charging liens.

Practice point: A charging lien is available whether an attorney is discharged or withdraws.

Case: Delaj v. Jameson, NY Slip Op 04203 (1st Dept. 2008)

General jurisdiction.

Practice point: Supreme Court may hear all causes of action unless its jurisdiction has been specifically proscribed.

Case: Colgate v. Broadwall Mgt. Corp., NY Slip Op 04190 (1st Dept. 2008)

Drug Testing of School Bus Drivers.

Practice point: A driver who refuses to take a drug test will be removed immediately from active duty for at least one year and will not return to duty until passing a drug test, pursuant to Administrative Code § 17-610[c].

Case: Matter of Gomez v. New York City Dept. of Educ., NY Slip Op 03956 (1st Dept. 2008)

Remedies.

Practice point: When a contract for the sale of real property contains a clause specifically setting forth the remedies available to the buyer if the seller is unable to satisfy a stated condition, fundamental rules of contract construction and enforcement require that the buyer's remedies are limited to those expressly provided in the sale contract.

Case: Gindi v Intertrade Internationale Ltd., NY Slip Op 03952 (1st Dept. 2008)

Facts: Paragraph 3 of the rider to the contract of sale provided, in pertinent part, that "[i]f for any reason, except for seller's willful default, the seller shall be unable to convey good and marketable title, subject to and in accordance with this Contract, then the sole obligation of the seller shall be to refund to the purchaser the deposit made hereunder and to reimburse the purchaser for the net cost of title examination." (emphasis added).

There was no evidence of a willful default on the part of defendant, and so plaintiff was not entitled to specific performance of the contract of sale.

Contribution.

Practice point: General Obligations Law § 15-108(c) bars a contribution claim by a settling defendant/third-party plaintiff against a nonsettling third-party defendant.

Case: Negron v. Topelson, NY Slip Op 03717 (1st Dept. 2008)

Ready, willing and able to buy.

Practice point: While a real estate broker will have earned a commission by producing a purchaser who is ready, willing and able to purchase at the seller's terms, the mere signing of a contract does not establish that the buyer is financially able to complete the transaction and meet the purchase price.

Case: F. Richard Wolff & Son, Inc. v. Tutora, NY Slip Op 03583 (2d Dept. 2008)

Experts' statements.

Practice point: An expert's statement put forward by a party in litigation constitutes an informal judicial admission which is admissible against, although not binding upon, the party that submitted it.

Case: Djetoumani v. Transit, Inc., NY Slip Op 03580 (2d Dept. 2008)

A party's failure to testify.

Practice point: A jury may, but is not required to, draw the strongest inference that the opposing evidence permits against a party who fails to testify at trial.

Case: Brown v. City of New York, NY Slip Op 03574 (2d Dept. 2008)

Tortious interference.

Practice point: New York does not recognize a cause of action for tortious interference with a prospective inheritance.

Case: Jacobs v. Kay, NY Slip Op 03710 (1st Dept. 2008)

An independent contractor's duty to warn.

Practice point: In the absence of a contract for routine or systematic maintenance, an independent contractor or repairer has no duty to install safety devices or to inspect or warn of any purported defects.

Case: Ledesma v. Aragona Mgt. Group, NY Slip Op 03694 (1st Dept. 2008)

Indemnification.

Practice point: A party which admits fault is not entitled to common-law indemnification.

Case: Kuhn v. Sugar Reef Inc., NY Slip Op 03501 (1st Dept. 2008)

22 NYCRR 130-1.1[c]

Practice point: Conduct is sanctionable as frivolous if it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.

Case: Newman v. Berkowitz, NY Slip Op 03493 (1st Dept. 2008)

Labor Law § 740

Practice point: This whistleblower's statute prohibits an employer from retaliating against an employee who discloses to a supervisor an employer's activity, policy or practice which is in violation of law, rule or regulation and presents a substantial and specific danger to the public health or safety. To sustain this cause of action, plaintiff must offer proof of an actual violation, and not merely the reasonable belief of a possible violation.

Case: Berde v. North Shore-Long Island Jewish Health System, Inc., NY Slip Op 03409 (2d Dept. 2008)

General Municipal Law § 50-i

Practice point: While infancy automatically tolls the one-year and 90-day statute of limitations for commencing an action against a municipality, infancy alone does not compel the granting of a motion for leave to serve a late notice of claim when the delay is not the product of the infancy.

Case: Arias v. Kings County Hospital Center, NY Slip Op 03407 (2d Dept. 2008)

Custody rights.

Practice point: As between a parent and a nonparent, the parent has the superior custody right which cannot be denied unless the nonparent establishes that there is an extraordinary circumstance such as surrender, abandonment, persistent neglect, unfitness, or involuntary disruption of custody over an extended period of time.

Case: Cockrell v. Burke, NY Slip Op 03452 (2d Dept. 2008)

Snowstorms.

Practice point: Property owners have no obligation to maintain a constantly dry floor during a snowstorm, and are not required to cover the entire floor with mats.

Case: Meza v. Consolidated Edison, NY Slip Op 03324 (1st Dept. 2008)

Account stated.

Practice point: The fact that an attorney's invoices are insufficiently itemized does not in itself prevent an account stated from being created.

Case: Zanini v. Schvimmer, NY Slip Op 03317 (1st Dept. 2008)

CPLR 2221[e][2], [3]

Practice point: A motion for leave to renew must be supported by facts, not offered on the prior motion, that would change the prior determination. In addition, the motion must contain a reasonable justification for the failure to present the facts on the prior motion.

Case: Gale v. Lotito, NY Slip Op 03457 (2d Dept. 2008)

Education Law § 3813

Practice point: A notice of claim against a school district must satisfy the requirements of General Municipal Law § 50-e, including statements of the nature of the claim and the alleged damages or injuries.

Case: Melissa G. v. North Babylon Union Free School District, NY Slip Op 03456 (2d Dept. 2008)

Contract law.

Practice point: In adjudicating the rights of parties to a contract, courts may not fashion a new contract under the guise of contract construction. Nor may they imply a condition which the parties chose not to put in their contract.

Case: Camaiore v. Farance, NY Slip Op 03390 (1st Dept. 2008)

How far can the Appellate Division reach in its review?

Practice point: The Appellate Division's reach in reviewing the evidence in a nonjury trial is as broad as that of the trial court. However, a fact-finding court's conclusions will not be disturbed on appeal unless they obviously could not have been reached under any fair interpretation of the evidence, especially when the findings rest in large measure on witness credibility.

Case: Kalt v. Ritman, NY Slip Op 03387 (1st Dept. 2008)

CPLR 4401-a

Practice point: A cause of action for medical malpractice based on lack of informed consent must be dismissed if plaintiff does not offer expert testimony establishing that the disclosed information was qualitatively insufficient.

Case: Rodriguez v. New York City Health & Hospitals Corp., NY Slip Op 03383 (1st Dept. 2008)

General Municipal Law § 50-e[1][a],[5]

Practice point: Standing alone, the failure to proffer a reasonable excuse for delay in serving a notice of claim is not fatal to a motion for leave to file a late notice. However, without it, plaintiffs must demonstrate that the City had timely actual notice of the claim and suffered no prejudice by reason of the delay.

Case: Santopietro v. City of New York, NY Slip Op 03125 (1st Dept. 2008)

Negligent design.

Practice point: Under New York law, a manufacturer cannot be held liable for not adopting an alternative product design which is not shown to retain the inherent usefulness of the product when manufactured according to the more risky, but otherwise lawful, design that actually was used.

Case: Rose v. Brown & Williamson Tobacco Corp., NY Slip Op 03147 (1st Dept.)

Facts: Plaintiff developed lung cancer and neurological damage as the result of decades of cigarette-smoking. In her negligent design claim, plaintiff contended that the tobacco company should have sold only "light" cigarettes with relatively low levels of cancer-causing tar and addictive nicotine. The jury returned a plaintiff's verdict, but the Appellate Division reversed the denial of defendant's motion for a judgment notwithstanding the verdict. While "light" cigarettes were available during the relevant period, plaintiff failed to present any evidence that they appealed to more than a small portion of the cigarette-smoking public. Stated otherwise, the record contained no basis for a finding that "light" cigarettes have the same utility for the vast majority of smokers as do regular cigarettes.

Motion to vacate an arbitration award.

Practice point: In light of the arbitrator's conclusions that a teacher in the New York City school system for more than 23 years had successfully undergone treatment for her addiction and that she was "fit to teach," the arbitration award imposing a fine equal to two months' salary, rather than termination, was not irrational and did not violate strong public policy.

Case: City School District of the City of New York v. Lorber, NY Slip Op 03050 (1st Dept. 2008)

Labor Law § 240(1)

Practice point: To defeat summary judgment in a case based on violations of the Labor Law, defendant must establish that plaintiff had adequate safety devices available; that plaintiff knew that they were available and that plaintiff was expected to use them; that, for no good reason, plaintiff chose not to do so; and that, but for that choice, plaintiff would not have been injured.

Case: Kosavick v. Tishman Contr. Corp. of N.Y., NY Slip Op 03040 (1st Dept. 2008)

Facts: While performing demolition work, plaintiff was injured when he and his unsecured A-frame ladder were suddenly struck by a section of pipe he had cut, causing him to fall. Plaintiff had not been provided with adequate safety devices and no one was holding the ladder.