Employment Law.

Practice point: Plaintiff's allegation that defendant terminated her employment because of a disability and in retaliation for her having filed a Workers' Compensation claim does not state a cause of action for retaliatory discharge under the New York City Human Rights Law.

Practitioners should note that plaintiff’ sole remedy for retaliatory discharge in violation of Workers' Compensation Law § 120 is to file a complaint with the Workers' Compensation Board.

Case: Brook v. Overseas Media, Inc., NY Slip Op 00197 (1st Dept. 2010)

The opinion is here.

Monday’s issue: Attorney-client relationships.

Motion practice.

Practice point: Conduct during litigation is frivolous and subject to sanction and/or the award of costs, including an attorney's fee, when: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false, pursuant to 22 NYCRR 130-1.1[c].

Practitioners should note that, to avoid sanctions, at the least, the conduct must have a good faith basis.

Case: Dank v. Sears Holding Mgt. Corp., NY Slip Op 00093 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Employment Law.

Contracts.

Practice point: As a general rule, a party who enters into a contract to render services does not assume a duty of care to parties outside the contract.

Practitioners should note that a recognized exception to this rule exists where a defendant who undertakes to render services negligently creates or exacerbates a dangerous condition.

Case: Cooper v. American Carpet & Restoration Servs., Inc., NY Slip Op 00091 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Motion practice.

Legal malpractice.

Practice point: There was no malpractice if, in a prior action, fees were awarded for services which plaintiff now alleges were performed negligently.

Practitioners should note that failure to raise a malpractice claim when fee applications are considered by a Bankruptcy Court bars raising the claim later.

Case: Breslin Realty Dev. Corp. v. Shaw, NY Slip Op 00087 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Contracts.

Labor Law.

Practice point: 12 NYCRR 23-1.7(b)(1), which provides, among other things, that every hazardous opening into which a person may step or fall must be guarded by a substantial cover fastened in place or by a safety railing, is sufficiently specific to support a § 241(6) claim.

Practitioners should note that a 11/2 to 2 feet-deep trench is not a hazardous opening within the meaning of the Code.

Case: Barillaro v. Beechwood RB Shorehaven, LLC, NY Slip Op 00085 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

Motion practice.

Practice point: A default resulting from law office failure may be excused, pursuant to CPLR 2005, but defendant's denial of receipt of the papers and a letter referring to the pending motion, standing alone, is insufficient to rebut proof that the motion papers were properly mailed and the presumption of receipt.

Practitioners should note that defendant's noncompliance with court-ordered disclosure over a period of over two years will create an inference of willful and contumacious conduct warranting the striking of the answer.

Case: Bryant v. New York City Hous. Auth., NY Slip Op 00383 (1st Dept. 2010)

The opinion is here.

Monday’s issue: Labor Law.

Employment Law.

Practice point: Where an employment is for an indefinite term, it is presumed to be at will, and it may be freely terminated by either party at any time, for any reason or for no reason.

Practitioners should note that a plaintiff cannot use a different cause of action to recover damages for an entirely lawful termination.

Case: Peterec-Tolino v. Harap, NY Slip Op 09637 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: The court may extend the time for doing any act, as fixed by statute, rule or order, pursuant to CPLR 2004.

Practitioners should note that a certification order which directs plaintiff to file a note of issue within 90 days has the same effect as a valid 90-day notice pursuant to CPLR 3216.

Case: Oliver v. Town of Hempstead, NY Slip Op 09631 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: Without leave of court, plaintiff may serve a supplemental bill of particulars alleging continuing special damages, as long as it does not allege a new injury.

Practitioners should note that such a pleading is a supplemental bill, and not an amended bill.

Case: Maraviglia v. Lokshina, NY Slip 09624 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Court holiday.

The Courts are closed for today's holiday and so there is no post.

Tomorrow's issue: Motion practice.

Contracts.

Practice point: Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party.

Practitioners should note that, with a services contract, there may be liability to a third party where (1) the contracting party negligently launches an instrument of harm; (2) there is detrimental reliance on continued performance; or (3) the contracting party has entirely assumed the duty to safely maintain the premises.

Case: Kotara v. City of New York, NY Slip Op 09622 (2d Dept. 2009)

The opinion is here.

Tuesday’s issue: Motion practice.

Motion practice.

Practice point: A party has 120 days after filing a note of issue to move for summary judgment, after which it may do so only with leave of court, pursuant to CPLR 3212[a].

Practitioners should note that a trial court has discretion in determining whether to consider a motion made more than 120 days after the filing.

Case: Joson v. G & S Realty 1, LLC, NY Slip 09620 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Motion practice.

Practice point: Despite its remedial language, CPLR 2001 does not excuse a complete failure to file within the statute of limitations.

Practitioners should note that the papers served in an action must conform in all material respects to the papers that are filed to commence it.

Case: Goldenberg v. Westchester County Health Care Corp., NY Slip Op 09616 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: On a motion to dismiss on the ground that the action is time-barred, pursuant to CPLR 3211(a)(5), defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired.

Practitioners should note that, in order to sustain this burden, defendant must establish when the cause of action accrued.

Case: Cottone v. Selective Surfaces, Inc., NY Slip Op 09605 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: In seeking to restore a case more than one year after it has been dismissed pursuant to CPLR 3404, plaintiff must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to defendants.

Practitioners should note that plaintiff must satisfy all four elements before the dismissal can be vacated and the case restored.

Case: Bornstein v. Clearview Props., Inc., NY Slip Op 09602 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Contracts.

Practice point: While a contract for personal services is terminated by the servant’s death, a sales contract is not terminated by the buyer’s death.

Practitioners should note that where performance is possible, albeit unprofitable, the legal excuse of impossibility is not available.

Case: Warner v. Kaplan, NY Slip Op 09169 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: To prevail on a claim for fraudulent inducement, plaintiff must establish the intentional misrepresentation of a material fact, justifiable reliance, and a resulting injury.

Practitioners should note that plaintiff cannot establish the justifiable reliance element without having used the available means of verification.

Case: Ventur Group, LLC v. Finnerty, NY Slip Op 09544 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Employment Law.

Practice point: If there is an employment agreement which identifies plaintiff's title, salary, estimated start date, vacation days, and benefits, parol evidence is inadmissible to vary its terms.

Practitioners should note that since the agreement controls, plaintiff may not recover under a quasi-contractual theory.

Case: Johnson v. Stanfield Capital Partners, LLC, NY Slip Op 09534 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: Standing alone, a business relationship with a New York entity is not enough for personal jurisdiction.

Practitioners should note that the investment of money in New York is not a form of doing business for the purpose of CPLR § 301.

Case: Arroyo v. Mountain School, NY Slip Op 09509 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: On a 3211 motion to dismiss for failure to state a cause of action, the court must accept the alleged facts as true, give plaintiff the benefit of every inference, and determine only whether the allegations fit any cognizable legal theory.

Practitioners should note that allegations which are flatly contradicted by the record are not presumed to be true and, if documentary evidence disproves an essential allegation, dismissal is warranted.

Case: Deutsche Bank Natl. Trust Co. v. Sinclair, NY Slip Op 09419 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Happy New Year.

Best wishes for a safe and happy holiday weekend, and a wonderful 2010.

Thank you for your support throughout the year just past.

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