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.