Labor Law.

Practice point: There is a statutory duty to protect workers engaged in, among other things, the repair of a building or structure, pursuant to § 240(1).

Practitioners should note that routine maintenance in order to prevent a malfunction is not a covered activity.

Case: Santiago v. Fred-Doug 117, L.L.C., NY Slip Op 09369 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: In a medical malpractice action, service of the summons and complaint must be accompanied by the notice required by CPLR 3406, and by an attorney's certificate of merit, pursuant to CPLR 3012-a.

Practitioners should note that the court may extend the time to file the notice, upon the showing of good cause, pursuant to CPLR 2004.

Case: Grad v. Hafliger, NY Slip Op 09297 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Motion practice.

Practice point: CPLR 3216 authorizes, but does not require, dismissal of an action based on plaintiff's unreasonable neglect to proceed.

Practitioners should note that dismissal is prohibited if plaintiff shows a justifiable excuse for the delay and merit to the action.

Case: Espinoza v. 373-381 Park Ave. S., LLC, NY Slip Op 09288 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: CPLR 3216 permits dismissal for want of prosecution only after plaintiff has been served with written notice demanding a note of issue within 90 days, and also stating that failure to comply will result in a motion to dismiss.

Practitioners should note adherence to these statutory provisions is a condition precedent to dismissal.

Case: Itskov v. Menorah Home & Hosp. for the Aged & Infirm, NY Slip Op 08999 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Merry Christmas.

Best wishes for a safe and happy Christmas season.

The Courts reopen on Monday and we will be posting a new case.

In the meantime, thank you for your support throughout the year.

Motion practice.

Practice point: A court may exercise personal jurisdiction over a non-domiciliary who transacts any business within New York, pursuant to CPLR 302(a).

Practitioners should note that jurisdiction may result from even one transaction, if it was purposeful and it bears a substantial relationship to the claim.

Case: Executive Life Ltd. v. Silverman, NY Slip Op 08994 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Contracts.

Practice point: Agreements containing no definite term of duration are terminable at will.

Practitioners should note that the term need not be express, but may be implied.

Case: Better Living Now, Inc. v. Image Too, Inc., NY Slip Op 08769 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Labor Law.

Practice point: For liability to attach under § 240(1), the employee must have been injured during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.

Practitioners should note that ‘altering,' within the statute’s meaning, requires making a significant physical change to the configuration or composition of the building or structure, and routine maintenance is not protected.

Case: LaGiudice v. Sleepy's Inc., NY Slip Op 08788 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Contracts.

Practice point: Where the written agreement does not cover the dispute, plaintiff may present evidence to prove an alleged oral agreement, as such proof would not contradict or modify the terms.

Practitioners should note that where the written agreement does not cover the dispute, or there is a question about the existence of a contract, plaintiff may proceed on a theory of quasi-contract as well as breach of contract, and will not be required to elect a remedy.

Case: Elbroji v. 22 E. 54th St. Rest. Corp., NY Slip Op 08779 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Contracts.

Practice point: Where the written agreement does not cover the dispute, plaintiff may present evidence to prove an alleged oral agreement, as such proof would not contradict or modify the terms.

Practitioners should note that where the written agreement does not cover the dispute, or there is a question about the existence of a contract, plaintiff may proceed on a theory of quasi-contract as well as breach of contract, and will not be required to elect a remedy.

Case: Elbroji v. 22 E. 54th St. Rest. Corp., NY Slip Op 08779 (2d Dept. 2009)

The opinion is here.


Tomorrow’s issue: Labor Law.

Legal malpractice.

Practice point: To recover damages, plaintiff must establish that the attorney failed to exercise the skill and knowledge commonly possessed by a member of the profession, and that the breach of this duty proximately caused actual and ascertainable damages.

Practitioners should note that causation requires a showing that plaintiff would have prevailed in the underlying action or would not have incurred damages but for the attorney's negligence.

Case: Ali v. Fink, NY Slip Op 08766 (2d Dept. 2009)

The opinion is here.

Monday's issue: Contracts.

Motion practice.

Practice point: It is within the sound discretion of the court to decide a motion for leave to voluntarily discontinue an action without prejudice, pursuant to CPLR 3217(b).

Practitioners should note that the motion should be granted in the absence of special circumstances, such as prejudice to a defendant's substantial right.

Case: Expedite Video Conferencing Servs., Inc. v. Botello, NY Slip Op 08781 (2d Dept. 2009)

The opinion is here.

Tomorrow's issue: Legal malpractice.

Torts.

Practice point: A landowner has a duty to maintain the premises in a reasonably safe condition.

Practitioners should note that there is no duty to warn or protect against an open and obvious condition which is not inherently dangerous.

Case: Bretts v. Lincoln Plaza Assoc., Inc., NY Slip Op 08771 (2d Dept. 2009)

The opinion is here.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Notice of motion to compel the turnover of personal property is served in the same way as a summons, or by registered or certified mail, return receipt requested, pursuant to CPLR 5225(a).

Practitioners should note that improper notice deprives the court of jurisdiction to hear the motion.

Case: Buckeye Retirement Co., LLC, Ltd. v. Quattrocchi, NY Slip Op 08576 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

School Law.

Practice point: In order to find that a school has breached its duty to supervise when one student is injured by another, a plaintiff must show that the school had sufficiently specific knowledge or notice of the dangerous conduct, such that it reasonably could have been anticipated.

Practitioners should note that notice of prior similar conduct is generally required because school personnel cannot reasonably be expected to guard against all of the spontaneous acts that take place among students daily.

Case: Andrew T. B. v. Brewster Cent. School Dist., NY Slip Op 08571 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Evidence.

Practice point: A police accident report is inadmissible if it was made by an officer who did not witness the accident and it contains the hearsay statements of plaintiff's decedent as to the ultimate issue of fact.

Practitioners should note that the officer's affidavit vouching for the report’s truth does not make the report admissible.

Case: Fay v. Vargas, NY Slip Op 08510 (1st Dept. 2009)

The opinion is here.

Monday’s issue: School Law.

Arbitration.

Practice point: When a replacement arbitrator makes an award based on a review of the record, petitioner is not denied due process.

Practitioners should note that when the replacement was assigned because petitioner issued threats to the original arbitrator, petitioner will not be given a de novo hearing.

Case: Matter of Smith v. New York City Dept. of Educ., NY Slip Op 08493 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Evidence.

Motion practice.

Practice point: CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar and not restored within one year has been abandoned.

Practitioners should note that the court retains discretion to grant a motion to restore a case to the trial calendar after the one-year period has expired.

Case: Kahgan v. Alwi, NY Slip Op 08183 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Arbitration.

Motion practice.

Practice point: When defendant files an answer only after the court denies the motion to dismiss for lack of personal jurisdiction, defendant does not waive that defense by asserting unrelated counterclaims.

Practitioners should note that affidavits may be used to preserve potentially meritorious claims, even if inartfully pleaded.

Case: Finkelstein Newman Ferrara LLP v. Manning, NY Slip Op 08470 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: While lack of subject matter jurisdiction can be raised at any time, it is within a New York court's power to entertain the case before it.

Practitioners should note that the objection will likely be waived where, after judgment, it is argued that the court did not have power to act as to a particular question.

Case: Miraglia v. H & L Holding Corp., NY Slip Op 08453 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: A New York resident cannot bring a proceeding under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) against a foreign corporation for alleged discrimination that occurred outside New York.

Practitioners should note that the Americans with Disabilities Act (ADA) does not require an employer to grant the employee an indefinite leave of absence or to transfer the employee to a position in another department that is occupied by another employee.

Case: Esposito v. Altria Group, Inc., NY Slip Op 08151 (1st Dept. 2009)

The opinion is here.

Monday's issue: Motion practice.

Corporations.

Practice point: A corporation’s sole shareholder is the equitable owner and, in the absence of an adverse effect upon creditors’ rights, the corporation's property may be used in payment of or as security for personal debt.

Practitioners should note that a corporation may authorize its president to use corporate checks to pay personal debt.

Case: Masek v. Wichelman, NY Slip Op 08050 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending between the same parties for the same cause of action.

Practitioners should note that dismissal requires that both suits arise out of the same subject matter or series of alleged wrongs.

Case: Cherico, Cherico & Assoc. v. Midollo, NY Slip Op 07972 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Corporations

Arbitration.

Practice point: An award can be vacated on the basis of "manifest disregard of the law" but this is a doctrine of last resort limited to rare instances of extreme impropriety on the part of the arbitrator.

Practitioners should note that a court must find that (1) the arbitrator knew of a governing legal principle yet refused to apply it or ignored it altogether, and (2) the ignored law was well defined, explicit, and clearly applicable.

Case: McLaughlin, Piven, Vogel Sec., Inc. v. Ferrucci, NY Slip Op 07926 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: When plaintiff fails to serve a responsive bill of particulars following a conditional order of preclusion, the order becomes absolute.

Practitioners should note that, to avoid the adverse impact of the conditional order, plaintiff must demonstrate a reasonable excuse for the failure to comply and a meritorious cause of action.

Case: Panagiotou v. Samaritan Vil., Inc., NY Slip Op 07811 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Arbitration.

Res judicata.

Practice point: A final disposition on the merits bars litigation between the same parties on any other claims arising from the same transaction or the same or related facts, even if based upon a different theory involving different elements of proof.

Practitioners should note that the rule applies also to claims that could have been raised in the prior litigation.

Case: Shelley v. Silvestre, NY Slip Op 07822 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Happy Thanksgiving.

Thank you for following NEW YORK LAW NOTES throughout the year.

The courts reopen tomorrow and we will be posting again.

Tomorrow's issue: Res judicata.

Municipalities Law.

Practice point: On a motion for leave to serve a late notice of claim, the court will consider whether the municipality had actual knowledge of the essential facts within a reasonable time after the claim arose; whether there is a reasonable excuse for the failure to serve timely; and whether the municipality would be prejudiced in maintaining its defense.

Practitioners should note that the notice must give the municipality knowledge of the specific claim and not some general knowledge that a wrong has been committed.

Case: Wright v. City of New York, NY Slip Op 07856 (2d Dept. 2009)

The opinion is here.

Friday’s issue: Res judicata.

Labor Law.

Practice point: Where plaintiffs' injuries result from an allegedly dangerous condition on the property, and not the way the work was being performed, a property owner will be liable under a theory of common-law negligence, as codified by § 200.

Practitioners should note that a general contractor may be held liable if it had control over the work site and actual or constructive notice of the dangerous condition.

Case: Bridges v. Wyandanch Community Dev. Corp., NY Slip Op 07782 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Motion practice.

Practice point: The showing of merit required on a motion to restore is less than that required to defend a motion for summary judgment.

Practitioners should note that a finding of merit sufficient to vacate a plaintiff's default does not preclude a subsequent granting of summary judgment to defendants.

Case: Bowman v. Beach Concerts, Inc., NY Slip Op 07747 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Trial practice.

Practice point: When there are common questions of law or fact, a joint trial is warranted unless the opposing party demonstrates prejudice to a substantial right.

Practitioners should note that prejudice can be mitigated by the trial court with the appropriate jury instructions.

Case: Pierre-Louis v. DeLonghi Am., Inc., NY Slip Op 07607 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: A trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment.

Practitioners should note that a court exceeds its powers if, sua sponte, it reconsiders summary judgment motions after the case is dismissed by judgment.

Case: Merriwether v. Osborne, NY Slip Op 07602 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Trial practice.

Family Law.

Practice point: The award of attorney's fee pursuant to Domestic Relations Law § 237[a] is within the sound discretion of the court, and the issue is controlled by the equities and circumstances of each particular case.

Practitioners should note that the court is likely to consider the financial circumstances of both parties and the relative merit of the parties' positions.

Case: Gruppuso v. Caridi, NY Slip Op 07590 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A court has the discretion to extend the time to serve a notice of claim, pursuant to General Municipal Law § 50-e[5].

Practitioners should note that the lack of a reasonable excuse will not bar the granting of leave where there is actual notice and an absence of prejudice.

Case: Erichson v. City of Poughkeepsie Police Dept., NY Slip Op 07580 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Family Law.

Contracts.

Practice point: A clear and complete writing must be enforced according to its plain terms, without reference to parol or extrinsic evidence.

Practitioners should note that the implied covenant of good faith and fair dealing inherent in every contract cannot be used to create terms that do not exist in the writing.

Case: Vanlex Stores, Inc. v. BFP 300 Madison II LLC, NY Slip Op 07677 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A defendant’s purported need to conduct discovery does not warrant denial of plaintiff’s summary judgment motion when defendant already has personal knowledge of the relevant facts.

Practitioners should note that the mere hope or speculation that, during the discovery process, evidence sufficient to defeat the motion may be uncovered is insufficient to deny the motion.

Case: Corwin v. Heart Share Human Servs. of N.Y., NY Slip Op 07575 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Contracts.

Discovery.

Practice point: A party must provide proper authorizations for the release of medical records when that party has waived the physician-patient privilege by putting his or her physical or mental condition in issue.

Practitioners should note that a plaintiff puts his or her medical condition in issue by alleging physical injury or mental anguish in the bill of particulars.

Case: Abdalla v. Mazl Taxi, Inc., NY Slip Op 07566 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: A ball park’s proprietor is not required to protect all spectators, but must provide screening for those seated behind home plate where there is the greatest danger of being struck by a ball.

Practitioners should note that the screening must provide adequate protection for as many spectators as may reasonably be expected to be in that location during a typical game.

Case: Correa v. City of New York, NY Slip Op 07512 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Discovery.

Motion practice.

Practice point: A motion to vacate a dismissal for failure to appear at a scheduled court conference must be made within one year of service of a copy of the dismissal order with notice of entry, and be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action, pursuant to CPLR 5015.

Practitioners should note that where the dismissal order has never been served with notice of entry, there is no time limit on making a motion to vacate the dismissal.

Case: Donnelly v. Treeline Cos., NY Slip Op 07504 (1st Dept 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: A party that does not offer court-ordered disclosure is subject to preclusion of its evidence, pursuant to CPLR 3126.

Practitioners should note that the sanction is within the broad discretion of the court, and likely will not be disturbed on appeal.

Case: Emmitt v. City of New York, NY Slip Op 07331 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A party that does not offer court-ordered disclosure is subject to preclusion of its evidence, pursuant to CPLR 3126.

Practitioners should note that the sanction is within the broad discretion of the court, and likely will not be disturbed on appeal.

Case: Emmitt v. City of New York, NY Slip Op 07331 (1st Dept. 2009)



Tomorrow’s issue: Motion practice.

Contracts.

Practice point: If the language is ambiguous, its construction presents a question of fact that cannot be resolved on a motion for summary judgment.

Practitioners should note that the rule that ambiguous language will be construed against the drafter does not apply when the agreement resulted from negotiations between commercially sophisticated entities.

Case: Shadlich v. Rongrant Assoc., LLC, NY Slip Op 07394 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: Defendant’s motion to dismiss, pursuant to CPLR 3126, may be denied if plaintiff provides the requested disclosure while the motion is pending.

Practitioners should note that the court's direction that defendant provide plaintiff with the identities of certain employees does not impinge on defendant’s right to select a witness to produce for deposition.

Case: Lopes v. Metropolitan Tr. Auth., NY Slip Op 07379 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Motion practice.

Practice point: In a medical malpractice action, evidence of a defendant’s insurance is inadmissible.

Practitioners should note that, where testimony concerning insurance comes out at trial, even if innocently by counsel, a postverdict motion for a mistrial may be granted, even where the offending testimony had been stricken from the record.

Case: Grogan v. Nizam, NY Slip Op 07375 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: If plaintiff's prior medical condition might affect the amount of recoverable damages, the medical records are material and necessary to the defense, and a motion to compel their production will be granted.

Practitioners should note that if plaintiff's certificate of readiness incorrectly stated that all pretrial discovery, including physical examinations, had been completed, this is a misstatement of a material fact and the motion to vacate the note of issue and certificate of readiness will be granted.

Case: Amoroso v. City of New York, NY Slip Op 07212 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: A hospital cannot be held vicariously liable for the malpractice of a private attending physician who is not its employee.

Practitioners should note that there is an exception to the rule where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing.

Case: Schultz v. Shreedhar, NY Slip Op 07244 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

School Law.

Practice point: School officials must make a report when they have reasonable cause to suspect that a student is abused or maltreated, pursuant to Social Services Law § 413[1] and 415.

Practitioners should note that there is immunity from liability for making good faith child protective reports, pursuant to § 419.

Case: Biondo v. Ossining Union Free School Dist., NY Slip Op 07368 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Torts.

Municipalities Law.

Practice point: Service of a notice of claim within 90 days after accrual is a condition precedent to commencing a tort action against a municipal defendant.

Practitioners should note that late service may be allowed, but plaintiff must move for leave of the court within one year and 90 days of the accrual date, pursuant to General Municipal Law § 50-e(5).

Case: McShane v. Town of Hempstead, NY 07235 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: School Law.

Employment Law.

Practice point: An at-will employee has a cause of action alleging tortious interference with employment on a showing that the defendant utilized wrongful means to effect the employee’s termination.

Practitioners should note that plaintiff must show: (1) the existence of a business relationship between the plaintiff and a third party; (2) defendant’s interference with that business relationship; (3) that the defendants acted with the sole purpose of harming plaintiff or used dishonest, unfair, improper or illegal means that amounted to a crime or an independent tort; and (4) that such acts resulted in the injury to plaintiff's relationship with the third party.

Case: McHenry v. Lawrence, NY Slip Op 07234 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Motion practice.

Practice point: A complaint may not be dismissed for failure to prosecute when plaintiff has shown a justifiable excuse for the delay and a meritorious cause of action, pursuant to CPLR 3216[e].

Practitioners should note that plaintiff may avoid dismissal even absent this dual showing.

Case: Ferrera v. Esposit, NY Slip Op 07224 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: To establish entitlement to a preliminary injunction, a movant must establish (1) the likelihood of success on the merits, (2) irreparable harm absent an injunction, and (3) a balance of the equities in favor of granting the injunction.

Practitioners should note that “irreparable injury” has been held to mean any injury for which money damages are insufficient.

Case: Di Fabio v. Omnipoint Communications, Inc., NY Slip Op 07223 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: The factor of infancy, standing alone, does not compel the granting of a motion for leave to serve a late notice of claim.

Practitioners should note that merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not establish that the medical staff, by its acts or omissions, inflicted an injury on the plaintiff.

Case: Contreras v. KBM Realty Corp., NY Slip 07220 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Foreclosures Law.

Practice point: A referee cannot alter the terms of a judgment of foreclosure, and unauthorized variations between the terms of sale and the judgment are void.

Practitioners should note that, as a matter of equity, a court has the discretion to set aside a foreclosure sale if there is evidence of fraud, collusion, mistake, or misconduct.

Case: Cicorelli v. Hickey's Carting, Inc., NY Slip Op 07219 (2d Dept. 2009)

The opinion is here.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A verdict may not be set aside as being against the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence.

Practitioners should note that the issue of an expert witness’s credibility is considered up to the jury.

Case: Abdelkader v. Shahine, NY Slip Op 07210 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Foreclosures Law.

Employment Law.

Practice point: By including vulgar language on a patient’s discharge form, which the patient, without having read it, gave to her employer, a doctor is acting outside the scope of his employment, and the hospital cannot be held liable under a theory of respondeat superior.

Practitioners should note that the conduct challenged here, while offensive and bizarre, does not meet the requirement of outrageous conduct so as to be actionable as intentional infliction of emotional distress.

Case: Suarez v. Bakalchuk, NY Slip Op 07150 (1st Dept.)

The opinion is here.

Tomorrow’s issue: Motion practice.

Trusts and Estates.

Practice point: A valid inter vivos gift requires that the donor intend to make an irrevocable present transfer of ownership.

Practitioners should note that there must be either physical, constructive or symbolic delivery to the donee sufficient to divest the donor of dominion and control over the property, and acceptance by the donee.

Case: Matter of Baum, NY Slip Op 06782 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Vehicle and Traffic Law.

Practice point: Merely speeding down the street, even alongside another vehicle, does not constitute a “speed contest,” within the meaning of § 1182(1).

Practitioners should note that a statutory violation requires that some kind of race course must have been planned by the drivers. It is not enough that two automobiles left an intersection when the traffic light turned green and, thereafter, travelled side-by-side at 55 miles an hour, with each car jockeying for position.

Case: MIC Prop. & Cas. Corp. v. Avila, NY Slip Op 06813 (2d Dept. 2009)

The opinion is here.

Monday’s issue : Trusts and Estates.

Labor Law.

Practice point: § 741(2)(a) prohibits retaliatory action against covered employees who disclose or threaten to disclose a hospital’s policy or practice that the employee, in good faith, reasonably believes constitutes an improper quality of patient care.

Practitioners should note that “improper quality of care” means any procedure, action or failure to act which violates a law or rule, where the violation may present a danger to the public health or to the health of a specific patient, pursuant to § 741[1][d]).

Case: Luiso v. Northern Westchester Hosp. Ctr., NY Slip Op 06810 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Vehicle and Traffic Law.

Law of the case.

Practice point: The doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision.

Practitioners should note that the doctrine is not binding on an appellate court.

Case: Lehman v. North Greenwich Landscaping, LLC, NY Slip Op 06808 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Legal malpractice.

Practice point: The action must be commenced within three years of accrual, pursuant to CPLR 214[6] and 203[a], and accrual occurs when the malpractice is committed.

Practitioners should note that, under the doctrine of continuous representation, the statute of limitations is tolled while there is ongoing representation on the same matter in which the malpractice is alleged.

Case: Waggoner v. Caruso, NY Slip Op 06739 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Law of the case.

Torts.

Practice point: Governmental immunity does not insulate a defendant from liability for its employee’s negligence in carrying an ill person down a stairway, as such an act is plainly ministerial in nature, rather than discretionary or quasi-judicial.

Practitioners should note that if an EMS worker undertakes the affirmative action to treat the patient, the treatment must be done with due care.

Case: Velazquez v. New York City Health & Hosp. Corp., NY Slip Op 06735 (1st Dept. 2009)

The opinion is here.

Tuesday’s issue: Legal malpractice.

Employment Law.

Practice point: In claiming racial discrimination, there must be a prima facie showing that plaintiff is a member of a protected class; was qualified for the position and was terminated or suffered some other adverse employment action; and that the termination or adverse action took place under circumstances giving rise to an inference of discrimination. The burden then shifts to the employer to set forth legitimate and nondiscriminatory reasons to support its employment decision. The burden shifts again and plaintiff must prove that the reasons offered by the defendant were merely a pretext for the discrimination.

Practitioners should note that after-acquired evidence is not a bar to litigation and does not warrant summary judgment, but only affects the plaintiff's damages if and when the employer is found liable.

Case: Baldwin v. Cablevision Sys. Corp., NY Slip Op 06718 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: A plaintiff demonstrates entitlement to a default judgment by submitting proof of service; proof of the facts constituting its claim; and proof of defendant's default in answering or appearing, pursuant CPLR 3215[f].

Practitioners should note that, to avoid the entry of a default judgment, defendant must demonstrate a reasonable excuse for default and a meritorious defense to the action, pursuant to CPLR 5015[a][1].

Case: Mercury Cas. Co. v. Surgical Ctr. at Milburn, LLC, NY Slip Op 06516 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Municipalities Law.

Practice point: The City cannot be held vicariously liable for the negligence or intentional acts of the New York City Board of Education, since it is a separate and distinct entity.

Practitioners should note that, on a motion to dismiss, the court's only function is to determine whether the alleged facts fit within any cognizable legal theory.

Case: McClain v. City of New York, NY Slip Op 06409 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Corporations.

Practice point: A business may incorporate for the express purpose of escaping personal liability, but equity will pierce the corporate veil and permit the imposition of personal liability in order to avoid fraud or injustice.

Practitioners should note that a party seeking to pierce the corporate veil must show that the corporation’s owner exercised complete domination over it in the transaction at issue, and that this domination was used to commit a fraud or wrong.

Case: Shkolnik v. Krutoy, NY Slip Op 06677 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Motion practice.

Practice point: An evidentiary ruling made before trial is generally reviewable only in connection with an appeal from the judgment after trial.

Practitioners should note that no discrete appeal lies from an order granting a motion to preclude proposed expert testimony.

Case: Santos v. Nicolas, NY Slip Op 06602 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Corporations.

Motion practice.

Practice point: A motion to dismiss a complaint based on documentary evidence will be granted only when the evidence utterly refutes plaintiff's factual allegations, and establishes a defense as a matter of law.

Practitioners should note that leave to amend the complaint will be given absent prejudice or surprise.

Case: Stein v. Garfield Regency Condominium, NY Slip Op 06531 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Res judicata.

Practice point: The doctrine precludes the relitigation of issues that could have or should have been raised in a prior proceeding stemming from the same factual grouping or transaction.

Practitioners should note that, where the same foundational facts serve as a predicate for two proceedings, differences in legal theory or relief sought do not create a separate cause of action.

Case: Greaves v. Ortiz, NY Slip Op 06508 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Remedies.

Practice point: A preliminary injunction is not available to preserve assets as security for a potential money judgment even if a party intends to frustrate a judgment by making it uncollectible.

Practitioners should note that a general creditor might seek an attachment if the debtor is looking to transfer assets.

Case: Fatima v. Twenty Seven-Twenty Four Realty Corp., NY Slip Op 06503 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Res judicata.

Torts.

Practice point: A possessor of real property has a duty to maintain reasonable security measures to protect those lawfully on the premises from the foreseeable criminal acts of third parties.

Practitioners should note that foreseeability requires that the criminal conduct must be reasonably predictable based on prior occurrences of a similar kind at a sufficiently proximate location.

Case: Bryan v. Crobar, NY Slip Op 06394 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Remedies.

Motion practice.

Practice point: An action may be dismissed for a delay in its prosecution, pursuant to CPLR 3216[a].

Practitioners should note that, for such a dismissal, there are three requirements: (1) issue must have been joined, (2) one year must have elapsed following joinder, and (3) there must have been a written demand served by registered or certified mail requiring that a note of issue be served and filed within ninety days, pursuant to CPLR 3216[b].

Case: Michaels v. Sunrise Bldg. & Remodeling, Inc., NY Slip Op 06411 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Torts.

The "danger invites rescue" doctrine.

Practice point: There is no cause of action in negligence against a rescuer who was rushing into danger to save someone from an imminent, life-threatening peril.

Practitioners should note that the doctrine works against a party whose culpable act has put someone in an imminent peril which invites a third person to come to the rescue.

Case: Flederbach v. Lennett, NY Slip Op 06402 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: New York does not recognize a cause of action in tort for wrongful termination.

Practitioners should note that, absent an express agreement establishing that it is for a fixed duration, the employment is presumed to be at-will and can be freely terminated by either party at any time, for any reason, or for no reason at all.

Case: Daub v. Future Tech Enter., Inc., NY Slip Op 06397 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: The “danger invites rescue” doctrine.

Vehicle and Traffic Law.

Practice point: To establish liability pursuant to § 388(1), a plaintiff must show negligence in the use or operation of the vehicle, and that the negligence was a cause of the injury.

Practitioners should note that if intentional offensive contact is established, the actor is liable for battery, not negligence.

Case: Ciminello v. Sullivan, NY Slip Op 06396 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Labor Law.

Practice point: For purposes of § 240(1) liability, an airplane is a structure.

Practitioners should note that the City may be liable as fee owner, even though it leased the premises to the Port Authority, which in turn leased the premises to an airline.

Case: Wong v. City of New York, NY Slip Op 06395 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Vehicle and Traffic Law.

Torts.

Practice point: An arm's length borrower-lender relationship is not confidential or fiduciary in nature, and does not support a cause of action for negligent misrepresentation.

Practitioners should note that liability for negligent misrepresentation will be imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party.

Case: Dobroshi v. Bank of Am., N.A., NY Slip Op 06382 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

Products liability.

Practice point: A manufacturer has a duty to warn against latent dangers resulting from reasonably foreseeable uses of its product.

Practitioners should note that, where a product is manufactured so as to allow its use without a safety feature, a plaintiff may recover for injuries suffered as a result of removing the safety feature.

Case: Stewart v. Honeywell Intl. Inc., NY Slip Op 06365 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Torts.

Practice point: An action to recover for personal injury or wrongful death against a doctor or hospital may be based either on simple negligence principles or on the narrower medical malpractice standard.

Practitioners should note that negligence principles apply where the alleged act may be determined by the fact-trier based on common knowledge. Where the issue involves directions given or treatment administered, consideration must be given to the professional skill and judgment of the practitioner or facility, and medical malpractice principles apply.

Case: Friedmann v. New York Hospital-Cornell Med. Ctr., NY Slip Op 06362 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Products liability.

Contracts.

Practice point: The rule of accord and satisfaction is generally accepted as a legitimate and expeditious means of settling contract disputes.

Practitioners should note that the affirmative defense requires a disputed claim that the parties resolved through a new contract discharging their obligations under the original contract.

Case: Profex, Inc. v. Town of Fishkill, NY Slip Op 06320 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Municipalities Law.

Practice point: Under Highway Law § 139(2), a county may not be subjected to liability for injuries caused by an improperly maintained highway unless (1) it has received prior written notice of the defect, or (2) a statutory exception to the notice requirement applies.

Practitioners should note that, as a matter of law, constructive notice of a defect, except in the case of snow and ice, is an exception to the prior written notice requirement.

Case: Napolitano v. Suffolk County Dept. of Pub. Works, NY Slip Op 06319 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Remedies.

A plaintiff is not precluded from maintaining an action simply because plaintiff received payment from its insurance carrier.

Practitioners should note that plaintiff's receipt of an insurance payment may be relevant as a possible setoff against the damages award, pursuant to CPLR 4545[c].

Case: Hopper v. McCollum, NY Slip Op 06315 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

Motion practice.

Practice point: The filing of a supplemental summons and complaint commences an action against a newly-joined defendant or a third-party defendant, pursuant to CPLR 305[a].

Practitioners should note that a claim asserted against a defendant in an amended filing may relate back to claims previously asserted against a codefendant for statute of limitations purposes where the two defendants are united in interest, pursuant to CPLR 203[c].

Case: Benn v. Losquadro Ice Co., Inc., NY Slip Op 06307 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Remedies.

Municipalities Law.

Practice point: The markings on a Big Apple map must give notice of the particular defect that allegedly caused the injury. Markings showing a sidewalk crack do not give notice of a hole at the end of that crack.

Practitioners should note that, on a motion for summary judgment, where the City establishes that it lacked prior written notice, the burden shifts to plaintiff to demonstrate the applicability of one of two recognized exceptions to the requirement of written notice: (1) that the municipality affirmatively created the defect through an act of negligence, or (2) that a special use resulted in a special benefit to the municipality.

Case: Ortiz v. City of New York, NY Slip Op 06299 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: Where there is an inconsistency between an order and the decision on which it is based, the decision controls.

Practitioners should note that the order is not rendered a nullity by this inconsistency unless it affects a substantial right of a party, pursuant to CPLR 5019[a].

Case: Matter of Stewart, NY Slip Op 06254 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Motion practice.

Practice point: On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, give plaintiff the benefit of every possible favorable inference, and determine only whether the allegations fit within any cognizable legal theory.

Practitioners should note that while affidavits may be considered, if the motion has not been converted to a CPLR 3212 motion for summary judgment, affidavits are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims.

Case: Mathurin v. Lost & Found Recovery, LLC, NY Slip Op 06240 (2d Dept. 2009)

The opinion is here.

Tuesday’s issue: Motion practice.

Torts.

Practice point: To demonstrate a lack of informed consent, a plaintiff must establish (1) that defendant failed to disclose the material risks, benefits and alternatives to the surgery which a reasonable medical practitioner would have disclosed, and (2) that a reasonably prudent person in plaintiff's position would not have undergone the surgery if he or she had been fully informed, pursuant to Public Health Law § 2805-d[1], [3].

Practitioners should note that informed consent does not require disclosure of the qualifications of personnel providing the professional treatment, pursuant to Public Health Law § 2805-d.

Case: Johnson v. Jacobwitz, NY Slip Op 06236 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Property.

Practice point: Partition is an equitable remedy and Supreme Court has the authority to adjust the parties’ rights so that each receives the proper share of the property and its benefits.

Practitioners should note that a tenant’s expenditures in excess
of tenant’s obligations may be charged against the cotenant’s interest. These expenditures include down payments and mortgage payments.

Case: Brady v. Varrone, NY Slip Op 06228 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Municipalities Law.

Practice point: As a general rule, a municipal defendant is immune from liability for conduct involving the exercise of discretion and reasoned judgment.

Practitioners should note that the judgment error rule does not immunize municipal defendants when an innocent bystander is injured by a police officer’s action in an altercation involving a violation of department guidelines governing the use of deadly force.

Case: Johnson v. City of New York, NY Slip Op 06225 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Property.

Labor Law.

Practice point: For summary judgment in a § 240(1) action, a plaintiff must establish that there was a violation of the statute, and that the violation was the proximate cause of the injuries.

Practitioners should note that there is no liability if adequate safety devices are provided and the worker either chooses not to use them or misuses them.

Case: Cherry v. Time Warner, Inc., NY Slip Op 06226 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Municipalities Law.

Practice point: Generally, a plaintiff who has failed to comply with a demand for a hearing pursuant to General Municipal Law 50-h(2) is precluded from commencing an action against a municipality.

Practitioners should note that the complaint should not be dismissed where the hearing has been postponed indefinitely beyond the statutory 90-day period, and the municipality has not rescheduled the hearing.

Case: Vargas v. City of Yonkers, NY Slip Op 06176 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

Trusts and Estates.

Practice point: To make a valid inter vivos gift, there must be
the intent to transfer; there must be delivery, either actual or constructive; and there must be acceptance by the donee.

Practitioners should note that the law will presume an acceptance when the gift is of value.

Case: Shybunko v. Geodesic Homes, Inc., NY Slip Op 06174 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Motion practice.

Practice point: Where evidentiary material is submitted and considered on a motion to dismiss, pursuant to CPLR 3211(a)(7), the court must determine whether plaintiff has a cause of action, not whether plaintiff has stated one.

Practitioners should note that the motion should be denied unless it has been shown that a material fact as claimed by plaintiff is not a fact at all, and unless it can be said that there is no significant dispute regarding it.

Case: Shapiro v. Jackel, NY Slip Op 06171 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Trusts and Estates.

Attorney-client relationships.

Practice point: A lawyer may withdraw from representation if the client's conduct makes it unreasonably difficult for the lawyer to be effective, pursuant to Code of Professional Responsibility DR 2-110[c][1][iv]; 22 NYCRR 1200.15(c)(1)(iv).

Practitioners should note that a lawyer may withdraw if the client deliberately disregards an agreement or obligation as to expenses or fees, pursuant to Code of Professional Responsibility DR 2-110[C][1][f]; 22 NYCRR 1200.15(c)(1)(vi).

Case: Misek-Falkoff v. Metropolitan Tr. Auth., NY Slip Op 06168 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Evidence.

Practice point: The Frye rule is that expert testimony based on a scientific principle or procedure is admissible if the principle or procedure has gained general acceptance in its specific field.

Practitioners should note Frye is not concerned with the reliability of an expert's conclusions, but only with whether the expert's deductions are based on principles or procedures that are sufficiently established to have gained general acceptance as reliable.

Case: Lipschitz v. Stein, NY Slip Op 06167 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Attorney-client relationships.

Appellate practice.

Practice point: It is appellant’s responsibility to assemble the necessary and proper record.

Practitioners should note that the record must contain all relevant papers that were before the Supreme Court.

Case: Keita v. United Parcel Service, NY Slip Op 06165 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Evidence

Motion practice.

Practice point: On a motion for summary judgment in a medical malpractice action, defendant must establish the absence of any departure from good and accepted medical practice, or that plaintiff was not injured thereby.

Practitioners should note that, in opposition, plaintiff must submit a physician's affidavit attesting to defendant's departure from accepted practice, and that the departure was a competent producing cause of the injury. Conclusory allegations which are unsupported by competent evidence are insufficient to defeat summary judgment.

Case: Flanagan v. Catskill Regional Medical Center, NY Slip Op 06161 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Appellate practice.

Motion practice.

Practice point: Pursuant to CPLR 3212(f), a trial court has the discretion to deny a motion for summary judgment or to order a continuance if facts essential to an opposition may exist, but cannot then be stated.

Practitioners should note that there must be a likelihood of discovery leading to such evidence, and the party opposing the motion must allege the existence of proof in admissible form which presents a triable issue of fact or an acceptable excuse for the absence of first-hand knowledge.

Case: Desena v. City of New York, NY Slip Op 06160 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Trusts and Estates.

Practice point: Pursuant to Estates, Powers and Trusts Law 11-3.2(b), a personal representative of the decedent may bring an action for injury to decedent’s person or property.

Practitioners should note that 13-3.5(a)(1) provides that a foreign decedent’s representative bringing an action in New York must, within 10 days of commencing the action, file a copy of the representative’s letters, authenticated as required by CPLR 4542.

Case: Schoeps v. Andrew Lloyd Webber Art Foundation, NY Slip Op 06155 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: To survive a pre-answer motion to dismiss pursuant to CPLR 3211(a)(7), plaintiff must plead allegations from which damages attributable to defendant's conduct may reasonably be inferred.

Practitioners should note that, at this early stage of the proceeding, plaintiff is not obliged to show that damages actually were sustained.

Case: Fielding v. Kupferman, NY Slip Op 06151 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Trusts and Estates.

Comparative negligence.

Practice point: A person who accepts a ride in a vehicle, with knowledge that the operator may be intoxicated, takes a risk that injury might occur.

Practitioners should note that the risk will be considered in the analysis of comparative negligence as between the vehicle’s operator and the passenger.

Case: Strychalski v. Dailey, NY Slip Op 06134 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Arbitration.

Practice point: Arbitration is favored in New York State as a means of resolving disputes, and courts will interfere as little as possible with agreements to arbitrate.

Practitioners should note that a party will not be compelled to arbitrate absent evidence that the parties expressly agreed to arbitrate their disputes.

Case: Shah v. Monpat Constr., Inc., NY Slip Op 06132 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Comparative negligence.

Motion practice.

Practice point: A defendant seeking to vacate its default in appearing or answering must offer a reasonable excuse for the default and demonstrate a meritorious defense to the complaint.

Practitioners should note that an excuse that the insurer took more than one year in providing a defense is insufficient.

Case: Kramer v. Oil Services, Inc., NY Slip Op 06121 (2d Dept. 2009).

The opinion is here.

Tomorrow’s issue: Arbitration.

Notice of claim.

Practice point: Filing a police accident report with the New York City Department of Transportation does not constitute notice of claim to the City.

Practitioners should note that law office failure, standing alone, is insufficient to justify serving an unauthorized late notice of claim five months after the expiration of the 90-day statutory period of General Municipal Law § 50-e.

Case: Gobardhan v. City of New York, NY Slip Op 05961 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Contracts.

Practice point: If a contract is not signed by the party to be charged with its enforcement, it is void as against that party, pursuant to the statute of frauds.

Practitioners should note that to prove an enforceable oral contract under the doctrine of part performance, there must be an act that is unequivocally referable to the alleged contract.

Case: Singh v. Kur, NY Slip Op 05957 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Notice of claim.

Motion practice.

Practice point: In an action brought by an out-of-state resident, defendant may move for an order directing plaintiff to post security during the pendency of the action so that defendant, if successful, will be able to collect its costs, pursuant to CPLR 8501[a].

Practitioners should note that, in counties outside of the City of New York, the statutory amount is $250, pursuant to CPLR 8503.

Case: Halloway v. KRNH, Inc., NY Slip Op 06003 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Contracts.

Legal malpractice.

Practice point: To support the cause of action, the factual allegations must establish the necessary element of causation, namely, that "but for" the alleged acts or omissions, plaintiff would not have incurred any damages.

Practitioners should note that the mere failure to disclose malpractice does not give rise to a cause of action alleging fraud or deceit, apart from the underlying malpractice cause of action.

Case: Reichenbaum v. Cilmi, NY Slip Op 05954 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A motion for leave to renew must be based on new facts that would change the prior determination, pursuant to CPLR 221[e][2]), and must include a reasonable justification for the failure to present the facts on the prior motion, pursuant to CPLR 2221[e][3].

Practitioners should note that a motion to reargue is within the sound discretion of the court, and may be granted on a showing that the court overlooked or misapprehended the facts or law, or otherwise mistakenly arrived at its earlier decision.

Case: Barnett v. Smith, NY Slip Op 05939 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

Motion practice.

Practice point: An order that was issued sua sponte is not appealable as of right.

Practitioners should note that a motion is a request for an order, pursuant to CPLR 2211, and a letter simply requesting a telephone conference with the court does not serve as a notice of motion.

Case: Reyes v. Sequeira, NY Slip Op 05986 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Real property.

Practice point: A contract for sale is void unless it is in writing and subscribed by the party to be charged or a lawful agent, pursuant to General Obligations Law § 5-703(2).

Practitioners should note that an agent’s apparent authority, if unwritten, does not satisfy the statute of frauds.

Case: Leist v. Tugendhaft, NY Slip Op 05950 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Duty of care.

Practice point: Emotional harm is compensable in the absence of physical injury, but only where the injury is a direct result of the alleged breach of duty.

Practitioners should note that the claim must possess some guarantee of genuineness.

Case: Karin K. v. Four Winds Hospital, NY Slip Op 05947 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Real property.

Defamation.

Practice point: Pursuant to CPLR 3016(a), the complaint must set forth the particular words complained of.

Practitioners should note that compliance with the statute is strictly enforced.

Case: Horbul v. Mercury Ins. Group, NY Slip Op 05947 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Duty of care.

Stipulations of settlement.

Practice point: A party will not be relieved from the stipulation absent fraud, mistake, collusion or accident.

Practitioners should note that the party seeking to vacate the stipulation must do so with reasonable promptness under the circumstances.

Case: Charlop v. A.O. Smith Water Prods., NY Slip Op 05911 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Defamation.

Damages.

Practice point: Damages for breach of contract are ordinarily ascertained as of the date of the breach, not the date of trial.

Practitioners should note that a contract is not breached until the time set for performance has expired.

Case: Cole v. Macklowe, NY Slip Op 05907 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Stipulations of settlement.

Contracts.

Practice point: A party cannot complain that it was induced to enter into a transaction by misrepresentations if it did not use the ordinary means of discovering the transaction’s true nature.

Practitioners should note that a plaintiff cannot argue that a lease agreement was modified by defendant’s oral representations when the lease expressly provides that its terms may be changed only in writing.

Case: Woods v. 126 Riverside Dr. Corp., NY Slip Op 05634 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Damages.

Landlord-tenant.

Practice point: A landlord may recover possession of a rent-stabilized apartment if it is not occupied by the tenant as the primary residence.

Practitioners should note that “primary residence” will be construed as an ongoing, substantial, physical nexus with the premises for actual living purposes.

Case: 542 E. 14th St. LLC v. Lee, NY Slip Op 05689 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Contracts.

Motion practice.

Practice point: On a motion for summary judgment in a medical malpractice matter, defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice, or that plaintiff was not injured thereby.

Practitioners should note that, in opposition, plaintiff must submit material or evidentiary facts to rebut defendant's prima facie showing.

Case: Langan v. St. Vincent's Hosp. of N.Y., NY Slip Op 05846 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Landlord-tenant.

Spoilation.

Practice point: A party who negligently loses or intentionally destroys key evidence party may be sanctioned, pursuant to CPLR 3126.

Practitioners should note that, in the event of spoliation, the sanction of striking a pleading is appropriate only where the missing evidence deprives the moving party of the ability to establish a claim or a defense.

Case: Holland v. W.M. Realty Mgt., Inc., NY Slip Op 05844 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Statute of limitations.

Practice point: The nature of the relief sought in a declaratory judgment action dictates the limitations period.

Practitioners should note that, if plaintiff could have commenced an action against the defendant corporation to recover damages for fraud, the limitations period is six years from the time of the fraud, or two years from the time the fraud was, or could have been, discovered.

Case: Waldman v. 853 St. Nicholas Realty Corp., NY Slip Op 05769 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Spoilation.

Employment Law.

Practice point: To make a prima facie showing of discrimination pursuant to Executive Law § 296(1), plaintiff must present evidence sufficient to raise an inference that he could perform the job with reasonable accommodations.

Practitioners should note that a claim for constructive discharge must establish that defendants' actions resulted in a workplace atmosphere so intolerable as to compel a reasonable person to leave.

Case: Evans v. City of New York, NY Slip Op 05832 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Statute of limitations.

Defamation.

Practice point: There is no cause of action if the words, tested by their effect on the average reader, are not reasonably susceptible of a defamatory meaning.

Practitioners should note that a communication that states or implies that a person is promiscuous is defamatory.

Case: Ava v. NYP Holdings, Inc., NY Slip Op 05611 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Employment Law.

Defamation.

Practice point: In order to be qualified as an expert, a witness must possess the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion is reliable.

Practitioners should note that evidence that a person has experience servicing and repairing elevators, standing alone, does not establish that the person can render a reliable opinion regarding the cause of the failure of an interlock.

Case: Schechter v. 3320 Holding LLC, NY Slip Op 05684 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Defamation.

Torts.

Practice point: The open and obvious nature of an obstacle negates the property owner's duty to warn, but not the duty to ensure that the property is reasonably safe.

Practitioners should note that plaintiff's recognition that she knew the obstacle was there, and had even warned another person to be careful of it, does not preclude a finding of liability.

Case: Lawson v. Riverbay Corp., NY Slip Op 05683 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Expert testimony.

Contracts.

Practice point: A written agreement is ambiguous if it is reasonably susceptible of more than one interpretation.

Practitioners should note that, in the absence of such ambiguity, parol evidence is inadmissible at trial or on a motion for summary judgment.

Case: RM Realty Holdings Corp. v. Moore, NY Slip Op 05682 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: No appeal lies from a default judgment, or its underlying order.

Practitioners should note that the appeal of an order will be dismissed if the issue raised therein was raised in a prior appeal of another order, and that appeal was dismissed for failure to prosecute.

Case: Salomon v. Angsten, NY Slip Op 05178 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Municipalities Law.

Practice point: To obtain preliminary injunctive relief based on a violation of its zoning ordinances, a town must demonstrate that it is likely to succeed on the merits and that the equities are balanced in its favor.

Practitioners should note that zoning ordinances will be strictly construed against the municipality, and any ambiguity in the language must be resolved in favor of the property owner.

Case: Town of Riverhead v. Gezari, NY Slip Op 05320 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: The right of direct appeal from an intermediate order terminates with the entry of judgment in the action.

Practitioners should note that in a declaratory judgment action the court's judgment must include an appropriate declaration in favor of the prevailing party.

Case: Strathmore Ridge Homeowners Assn., Inc. v. Mendicino, NY Slip Op 05318 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Service of process.

Practice point: Defendant’s detailed affidavit stating that he was home on each of the occasions when the process server purportedly attempted service, pursuant to CPLR 308(2), is sufficient to rebut allegations in the process server's affidavit, and defendant is entitled to a hearing to determine whether personal jurisdiction was acquired over him.

Practitioners should note that defendant’s actual notice of the action will not sustain service or subject a person to the court's jurisdiction when there has not been compliance with prescribed conditions of service.

Case: Saxon Mortgage Services v. Bell, NY Slip Op 05312 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: An at-will employee generally cannot establish reasonable reliance on a prospective employer's representations, an element necessary to recover damages under theories of fraudulent misrepresentation and negligent misrepresentation.

Practitioners should note that a critical element of prima facie tort is that plaintiff suffered a specific and measurable loss, which requires an allegation of special damages.

Case: Epifani v. Johnson, NY Slip Op 05287 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Service of process.

Torts.

Practice point: The awareness of one defect in the area is insufficient, as a matter of law, to constitute notice of another defect which caused the accident where there are factual issues (1) as to the precise location of the defect that caused plaintiff's fall, and (2) whether the defect is designated on the Big Apple Map.

Practitioners should note that plaintiff may amend the pleadings on the eve of trial to allege prior written notice where such amendment does not prejudice or surprise defendant, pursuant to CPLR 3025[b].

Case: Reyes v. City of New York, NY Slip Op 05267 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Happy July Fourth.

Today is a court holiday and so there is no post.

Thanks to the men and women whose service has kept us free, and enjoy a safe and happy holiday weekend.

Monday's issue: Torts.

Vacatur.

Practice point: Both CPLR 317 and 5015(a)(1) allow a defendant to move to vacate a default judgment, but the former is available only to a defendant who was served by other than personal delivery.

Practitioners should note that if the defaulting defendant asserts that the court lacked personal jurisdiction, the defendant should seek dismissal of the action under CPLR 5015(a)(4), a motion that has no time-limit.

Case: Caba v. Rai, NY Slip Op 05252 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Torts.

Marital property.

Practice point: Subject to equitable distribution, it includes property acquired by either spouse during the marriage regardless of the form in which title is held, pursuant to Domestic Relations Law § 236[B][1][c].

Practitioners should note that, even if one party has separate property, any appreciation in value of that property may be subject to distribution if there is a nexus between the titled spouse's efforts and the increase in value and if those efforts were aided or facilitated by the nontitled spouse.

Case: Wohl v. Wohl, NY Slip Op 04973 (1st Dept 2009)

The opinion is here.

Tomorrow’s issue: Vacatur.

Defective products.

Practice point: The distributor is strictly liable even if he has merely taken an order and directed the manufacturer to ship the product directly to the purchaser, and has never inspected, controlled, installed or serviced the product.

Practitioners should note that there is strict liability even if the product’s sale were incidental to the distributor’s installation of it.

Case: Fernandez v. Riverdale Terrace, NY Slip Op 05167 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Marital property.

Jurisdiction.

Practice point: Jurisdiction will be obtained over a corporate defendant by service of process on the Secretary of State, regardless of whether the process ever actually reached defendant.

Practitioners should note that while the failure to keep a current address with the Secretary of State, pursuant to Business Corporation Law § 306(b)(1), is generally not a reasonable excuse for default under CPLR 5015(a)(1), relief from a default may be granted pursuant to CPLR 317 where the court finds that a defendant did not personally receive notice of the summons in time to defend and has a meritorious defense.

Case: Shanker v. 119 E. 30th, Ltd., NY Slip Op 05165 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Defective products.

Service of process.

Practice point: Pursuant to CPLR 311(a)(1), service upon a corporation may be made by delivering the summons to an officer, director, managing agent, general agent, cashier, or assistant cashier.

Practitioners should note that, in addition, service may be made upon someone whom the corporation cloaks with authority.

Case: Aguilera v. Pistilli Constr. & Dev. Corp., NY Slip Op 04844 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Jurisdiction.

There is another instructive case here.

Municipalities Law.

Practice point: A § 50-h examination is a condition precedent to bringing an action against a municipality, and noncompliance is ground for dismissal.

Practitioners should note that failure to submit to the examination may be excused in exceptional circumstances, such as extreme physical or psychological incapacity.

Case: Steenbuck v. Sklarow, NY Slip 04890 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Service of process.

There is another instructive case here.

Motion practice.

Practice point: If service of process has been improper, any resulting default judgment is a nullity.

Practitioners should that that the fact that defendant had actual notice of the suit, and no meritorious defense, does not require a different result.

Case: Ruffin v. Lion Corp., NY Slip Op 04883 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

There is another instructive case here.

Legal malpractice.

Practice point: The absence of proximate cause requires dismissal of a legal malpractice action regardless of the attorney’s negligence.

Practitioners should note that an attorney may not recover fees for legal services performed in a negligent manner even where that negligence is not a proximate cause of client's injury.

Case: Kluczka v. Lecci, NY Slip Op 04867 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

Labor Law.

Practice point: For the purposes of § 240(1) liability, a fire escape could be the functional equivalent of a scaffold.

Practitioners should note that the fact that the fire escape is a permanent structure is not determinative.

Case: Gomez v. City of New York, NY Slip Op 04759 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

There is another instructive case here.

Long-arm jurisdiction.

Practice point: Defendant's negotiating the potential purchase of an automobile by email and telephone, which was initiated by plaintiff after seeing the car on defendant's website, does not constitute transacting business in New York.

Practitioners should note that, since the car was to be picked up in Texas, there was no contract to supply goods or services in New York. Defendant's website, which described available cars and featured an email link but did not let a customer purchase a car, was not a projection of defendant into New York.

Case: Arouh v. Budget Leasing, Inc., NY Slip Op 04751 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

There is another instructive case here.

Discovery.

Practice point: Full disclosure is required of everything material and necessary to the defense of an action, pursuant to CPLR 3101[a], which means that there must be disclosure of any facts bearing on the controversy.

Practitioners should note that, in a defamation action, defendant is entitled to discovery to establish the defense of truth to plaintiff's claims, and to defend against plaintiff's assertion of damage to his reputation.

Case: Rivera v. NYP Holdings, Inc., NY Slip 04706 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Long-arm jurisdiction.

There is another instructive case here.

Attorney-client relationships.

Practice point: While a plaintiff's perception, standing alone, does not create an attorney-client relationship, a formal retainer agreement is not imperative.

Practitioners should note that, in order to establish the relationship, there must be an explicit undertaking to perform a specific task.

Case: Terio v. Spodek, NY Slip 04412 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Discovery.

There is another instructive case here.

Motion practice.

Practice point: To avoid dismissal for failure to timely serve a complaint which has been demanded, pursuant to CPLR 3012(b), plaintiff must demonstrate a reasonable excuse for the delay and a meritorious cause of action.

Practitioners should note that until the attorney of record withdraws or is fired, as prescribed by CPLR 321, the attorney’s authority for the client as to adverse parties continues unabated.

Case: Splinters, Inc. v. Greenfield, NY Slip Op 04411 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Attorney-client relationships.

There is another instructive case here.

Trespass.

Practice point: Entering onto another’s property, without permission, even if innocently or by mistake, is a trespass.

Practitioners should note that nominal damages are presumed even where the property owner has suffered no actual injury.

Case: Hill v. Raziano, NY Slip Op 04382 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

Motion practice.

Practice point: In order to vacate a default in opposing plaintiff's motion to strike the answer, pursuant to CPLR 3126, defendant must demonstrate a reasonable excuse for the default and a meritorious defense to both the motion and the action, pursuant to CPLR 5015[a][1].

Practitioners should note that the mere denial of receipt is insufficient to rebut the proof that the motions papers were properly mailed, and the presumption of receipt.

Case: Caprio v. 1025 Manhattan Ave. Corp., NY Slip Op 04367 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Trespass.

There is another instructive case here.

Motion practice.

Practice point: An order striking a note of issue pending the completion of discovery is not the equivalent of an order marking the action off the calendar pursuant to CPLR 3404.

Practitioners should note that the action will be restored to the trial calendar when plaintiff files a new note of issue, which does not require the Court’s prior permission.

Case: Lane v. New York City Housing Authority, NY Slip Op 04203 (2d Dept. 2009).

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

Landlord-Tenant Law.

Practice point: Where a lease allows a landlord to recover attorneys’ fees if a tenant defaults or is evicted, the claim for the fee must be asserted in the summary proceeding.

Practitioners should note that a separate, plenary action to recover attorneys’ fees is prohibited as the splitting of the cause of action.

Case: Landmark Properties v. Olivo, NY Slip Op 04202 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

There is another instructive case here.

Legal malpractice.

Practice point: It is sufficient to allege that defendant, after being retained in a matter of wrongful termination as a result of a medical condition, advised plaintiff not to file a disability claim, and benefits were denied for lack of a timely filing.

Practitioners should note that the action is not barred when the underlying matter was settled, without a judgment.

Case: Douglas v. Dashevsky, NY Slip Op 04187 (2d Dept. 2009).

The opinion is here.

Tomorrow’s issue: Landlord-Tenant Law.

There is another instructive case here.

Damages.

Practice point: For permanent injury to real property, the standard is the lesser of the decline in market value and the cost of restoration.

Practitioners should note that defendant must prove that a lesser amount than plaintiff claims will be sufficient compensation.

Case: Dilapi v. Empire Drilling & Blasting, Inc., NY Slip Op 04186 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

There is another instructive case here.

Judgment as a matter of law.

Practice point: The motion will be granted, pursuant to CPLR 4401, only when the trial court determines that, based on the evidence presented, there is no rational process by which the jury could find in favor of the nonmoving party.

Practitioners should note that the court must afford the nonmovant every inference which may properly be drawn from the facts presented, and the facts must be considered most favorably to the nonmovant.

Case: DeVito v. City of New York, NY Slip Op 04184 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Damages.

You will find another instructive case here.

Motion practice.

Practice point: The Court may consider an untimely summary judgment motion where a timely motion was made on nearly identical grounds.

Practitioners should note that a Court is authorized to search the record and award summary judgment to a nonmoving party.

Case: Perfito v. Einhorn, NY Slip Op 04038 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Judgment as a matter of law.

You will find another instructive case here.