Trial practice.

Practice point: The apportionment of fault among defendants is generally an issue of fact for the jury.

Students should note that the jury's apportionment will not be set aside unless it could not have been reached based upon a fair interpretation of the evidence.

The case is McAleer v. Geraghty, NY Slip Op  00361 (2d Dept. 2011).

Here is the decision.

 Tomorrow’s issue is Contracts.

Labor Law.

Practice point: In order to prevail on a § 240(1) cause of action, plaintiff must establish that the statute was violated and that the violation was a proximate cause of the injury.

Students should note that summary judgment is precluded only if the disputed facts related to material issues.

Case: Leconte v. 80 E. End Owners Corp., NY Slip Op 00359 (2d Dept. 2011)

Here is the decision.

Monday’s issue: Trial practice.

Torts.

Practice point: On a summary judgment motion in a premises liability case, defendant must make a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Students should note that a property owner's duty is to maintain the property in a reasonably safe condition, but not to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous.

Case: Bloomfield v. Jericho Union Free School Dist., NY Slip Op 00341 (2d Dept. 2011)

Here is the decision.

Tomorrow’s issue: Labor Law.

Motion practice.

Practice point: To vacate a default judgment, defendant must demonstrate a reasonable excuse, and a potentially meritorious defense, pursuant to CPLR 5015[a][1].

Students should note that defendant's claim that he does not recall receiving the motion does not overcome the presumption of proper mailing created by the affidavit of service.

Case: Alterbaum v. Shubert Org., Inc., NY Slip Op 00339 (2d Dept. 2011)

Here is the decision.

Tomorrow's issue: Torts.

Torts.

Practice point: An out-of-possession owner has no obligation to perform repairs.

Students should note that if the lease reserves the owner's right to enter to make repairs, there is liability for failing to do so only if the injury-causing defect was a significant structural or design one that was contrary to a specific statutory provision.

Case: Devlin v. Blaggards III Rest. Corp., NY Slip Op 00258 (1st Dept. 2011)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: An action to recover damages arising from an attorney's alleged malpractice must be commenced within three years from accrual.

Students should note that the statute of limitations may be tolled by the doctrine of continuous representation.

Case: Leon Petroleum, LLC v. Carl S. Levine & Assoc., P.C., NY Slip Op 00193 (2d Dept. 2011)

Here is the decision.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: When evidentiary proof is offered on a CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action, the issue is whether plaintiff has a cause of action, not whether the pleading states one.

Students should note that, otherwise, the court must accept the pleaded facts as true, accord plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit any cognizable legal theory.

Case: Holster v. Cohen, NY Slip Op 00187 (2d Dept. 2011)

Here is the decision.

Monday’s issue: Torts.

Motion practice.

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

Students should note that a motion for leave to renew requires new facts that would change the prior determination, and a reasonable justification for the failure to present those facts on the prior motion.

Case: Grace v. Follini, NY Slip Op 00182 (2d Dept. 2011)

Here is the decision.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A motion to dismiss relying on documentary evidence must utterly refute plaintiff’s factual allegations, conclusively establishing a defense as a matter of law.

Students should note that the reasonableness of notice is not an issue that lends itself to determination on a CPLR 3211 motion.

Case: DKR Soundshore Oasis Holding v. Merrill Lynch Intl., NY Slip Op 00036 (1st Dept. 2011)

Here is the decision.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: An e-mail, under which the sending party's name is typed, can constitute a writing for purposes of the statute of frauds, pursuant to General Obligations Law § 5-701[b][4].

Students should note that that fact that defendant did not sign the agreement setting forth the details of its commission is not fatal either under the statute of frauds or as to enforceability, when there is documentary evidence of an agreement regarding the commission.

Case: Newmark & Co. Real Estate, Inc. v. 2615 E. 17 Realty LLC, NY Slip Op 00158 (1st Dept. 2011)

Here is the decision.

Tomorrow’s issue: Motion practice.

Court holiday.

Today is a Court holiday, and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue: Motion practice.

Employment Law.

Practice point: In an action alleging unlawful termination in violation of Labor Law § 740, the complaint will be dismissed if plaintiff fails to plead the violation of a law, rule or regulation.

Students should note that pleading a violation of the employer’s internal policies is insufficient.

Case: Cohen v. Hunter College, NY Slip Op 00040 (1st Dept. 2011)

Here is the decision.

Tuesday’s issue: Motion practice.

Motion practice.

Practice point: A motion for leave to amend a notice of claim will be granted if the error was made in good faith and the municipality has not been prejudiced, pursuant to General Municipal Law § 50-e[6].

Students should note that the fact that, nine months after the accident, plaintiff gave the correct building address in the complaint and bill of particulars does not mitigate the prejudice.

Case: Pelaez v. City of New York, NY Slip Op 09900 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: Medical record statements regarding the way the accident happened are admissible as business records if they were germane to diagnosis or treatment.

Students should note that statements might be admissible as admissions if they are inconsistent with plaintiff’s current account of the accident, and if they are satisfactorily connected to the patient.

Case: Kamolov v. BIA Group, LLC, NY Slip Op 09890 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: A claim of conversion cannot be predicated on a mere breach of contract.

Students should note that a contracting party may be charged with a separate tort liability arising from a breach of a duty distinct from, or in addition to, the breach of contract.

Case: East Ends Labs., Inc. v. Sawaya, NY Slip Op 09885 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: It is axiomatic in New York that where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or for no reason at all.

Students should note that the rule cannot be circumvented by framing the cause of action as tortuous interference with an employment relationship.

Case: Sullivan v. Harnisch, NY Slip Op 09407 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: Proximate cause can be established absent direct evidence, and may be inferred from the facts and circumstances underlying the injury.

Students should note that mere speculation as to the cause of a fall, where there can be many causes, is fatal to the cause of action.

Case: Bosser v. Bay Restoration Corp., NY Slip Op 09878 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Employment Law.

Torts.

Practice point: For summary judgment in a matter alleging design and manufacturing defects, defendant must establish that the product, as designed and manufactured, was reasonably safe.

Students should note that the cause of action based on failure to warn will be dismissed if plaintiff admits that he did not read the instruction manual.

Case: Boyle v. City of New York, NY Slip Op 09565 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: Opinions, even if false or libelous, are constitutionally protected and may not be the subject of private damage actions, if the facts supporting the opinions are set forth.

Students should note that the standard is whether a reasonable reader, aware of the full context and circumstances of the communication, would recognize the allegedly defamatory statements as expressions of opinion.

Case: Kidd v. Epstein, NY Slip Op 09562 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: There is no statutory time limit for a change of venue motion upon dismissal of a party whose residence was the basis for venue, but the motion must be made within a reasonable time.

Students should note that the movant does not have to wait for notice of entry of the order of dismissal.

Case: Moracho v. Open Door Family Med. Ctr., Inc., NY Slip Op 09382 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Motion practice.

Practice point: A claim for the imposition of a constructive trust is governed by the six-year statute of limitations, pursuant to CPLR 213(1).

Students should note that the statute begins to run at the time of the wrongful conduct or event giving rise to a duty of restitution.

Case: Klamar v. Marsans, NY Slip Op 09474 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.