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.