Adverse possession.

Practice point: Where the claim is not based on a written instrument, plaintiff must demonstrate that it cultivated, improved, or substantially enclosed the land.

Students should note that, since adverse possession is a disfavored means of gaining title, the evidentiary standard is clear and convincing.

Case: Best & Co. Haircutters, Ltd. v. Semon, NY Slip Op 01231 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue: Slip and fall in a public park.

Contracts.

Practice point: Strict compliance with contractual notice provisions need not be enforced where the adversary party does not claim the absence of actual notice or prejudice by the deviation.

Students should note that since the case was tried without a jury, the Appelate Division's  power to review the evidence is the same as the trial court’s, with appropriate regard given to the decision of the trial judge who was in a position to assess witness credibility.

The case is Baygold Assoc., Inc. v. Congregation Yetev Lev of Monsey, Inc., NY Slip Op 01228 (2d Dept. 2011).

Here is the decision.

Monday's issue is adverse possession.

Account stated.

Practice point: A defendant's generally phrased objection to plaintiff-law firm's billings does not constitute the specified, contemporaneous objection required to defeat an account stated cause of action.

Students should note that the cause of action cannot be defeated if defendant made partial payment against the invoices in question.

The case is LePatner & Associates v. Horowitz, NY Slip Op 00783 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is Contracts.

Motion practice.

Practice point: A party to the action must submit an affidavit in opposition to plaintiff's motion for a default judgment. The submission of an affirmation instead of an affidavit is improper, and the court will disregard it, rendering the opposing papers insufficient.

Students should note that the opposing papers will be deficient if they rely on an affidavit notarized by the attorney-defendant.

The case is Morrison Cohen LLP v. Fink, NY Slip Op 00779 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is account stated.

Dog bites.

Practice point: The fact that the dog was confined to the garage is not a predicate for liability, absent evidence that the confinement was because the owner feared that the dog would harm a visitor.

Students should note that New York does not recognize a common-law cause of action sounding in negligence to recover damages for injuries caused by a domestic animal.

The case is Roche v. Bryant, NY Slip Op 01011 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is motion practice.

Court holiday.

The courts are closed today, and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue is dog bites.

Motion practice.

Practice point: While CPLR 5019(a) gives the court discretion to correct a technical defect or a ministerial error, it may not be invoked to alter a party's substantive rights.

Students should note that the provision may not be used to seek modification of a judgment.

The case is Mount Sinai Hosp. v. Country Wide Ins., NY Slip Op 01008 (2d Dept. 2011).

Here is the decision.

Tuesday's issue is dog bites.

Labor Law.

Practice point: On a § 241(6) claim, plaintiff must plead a violation of a specific and applicable provision of the Industrial Code.

Students should note that the provision may be alleged in an amended pleading, even after the note of issue has been filed, if there is a showing of merit, there are no new factual allegations or theories of liability, and there is no prejudice to defendant.

The case is D'Elia v. City of New York, NY Slip Op 00996 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is motion practice.

Notice of claim.

Practice point: Service of a notice of claim within 90 days after accrual is a condition precedent to commencing an action against New York City Health and Hospitals Corporation.

Students should note that attaching a proposed notice to a petition for leave to serve the late notice does not satisfy the condition precedent.

The case is Argudo v. New York City Health & Hosps. Corp., NY Slip Op 00632 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is Labor Law.

Statute of frauds.

Practice point: A promise to answer for another's debt or default must be in writing, and subscribed by the promisor, pursuant to General Obligations Law § 5-701(a)(2).

Students should note that the promise need not be in writing if it is supported by a new and beneficial consideration moving to the promisor, and if the parties intend the promisor to become primarily liable.

The case is Bauccio v. Aon Recovery, Inc., NY Sip Op 00993 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is notice of claim.

Motion practice.

Practice point: The motion court correctly found that the new facts presented by plaintiff were "not very different" from those previously alleged, and, therefore, did not warrant a change in the prior determination, pursuant to CPLR 2221[e][2].

Students should note that New York does not recognize an independent tort cause of action for civil conspiracy.

The case is Montan v. Saint Vincent's Catholic Med. Ctr., NY Slip Op 00619 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is statute of frauds.

Court holiday.

The courts are closed today, and so there is no post on NEW YORK LAW NOTES.

Monday's issue is motion practice.

Motion practice.

Practice point: Plaintiff's expert's affidavit was rejected for non-compliance with the disclosure requirements of CPLR 3101(d)(1)(i) when the expert witness was first identified in opposition to defendant's summary judgment motion, after plaintiff filed the note of issue and certificate of readiness.

Students should note that the affidavit will also be rejected if the expert fails to demonstrate sufficient qualifications to render an opinion.

The case is Pellechia v. Partner Aviation Enters., Inc., NY Slip Op 00496 (2d Dept. 2011).

Here is the decision.

Monday's issue is motion practice.

Landlord-Tenant Law.

Practice point: The Housing Authority does not consider a deceased tenant’s godson an immediate relative who is able to obtain permanent permission to occupy an apartment and succeed to the lease.

Students should note that the Court has consistently enforced the agency's policy requiring a tenant to make a written request to have a relative or other family member become either a legally authorized permanent household member or a co-tenant.

The case is Hawthorne v. New York City Housing Authority, NY Slip Op 00569 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is motion practice.

Torts.

Practice point: Single-family residential property owners are exempt from statutory liability for personal injury caused by the failure to maintain the sidewalk abutting their property in a reasonably safe condition, pursuant to Administrative Code of City of NY § 7-210[b].

Students should note, however, that there may be common-law liability absent a showing that they did not affirmatively cause or create the alleged defect in the sidewalk.

The case is Gilmartin v. City of New York, NY Slip Op 00559 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is Landlord-Tenant Law.

Motion practice.

Practice point: Plaintiff established prima facie entitlement to a default judgment by submitting an affidavit of service, a copy of the verified complaint, and an attorney affirmation attesting to defendant’s default in answering.

Students should note that the motion was defeated by the submission of an affidavit stating that service was made on a non-employee, unauthorized to accept service on defendant's behalf, raising a fact issue as to his apparent authority to accept service.

The case is Miterko v. Peaslee, NY Slip Op 00492 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is Torts.

Trial practice.

Practice point: The parties may stipulate to the facts to be determined at trial, effectively excluding disputed matters that otherwise would be available to them.

Students should note that the parties stipulated to the only unresolved issues following trial, and since the stipulation did not reach the issue of disgorgement, plaintiff's belated request for that relief was denied.

The case is Dental Health Assoc. v. Zangeneh, NY Slip Op 00484 (2d Dept. 2011).

Here is the decision.

Monday's issue is motion practice.

Labor Law.

Practice point: The fact that an injured plaintiff was the sole witness to the accident does not preclude summary judgment.

Students should note that plaintiff established prima facie entitlement to judgment as a matter of law on the § 240(1) cause of action by submitting an affidavit and deposition testimony demonstrating that the scaffold she was using collapsed, causing her to fall and sustain injuries. 

The case is Campbell v. 111 Chelsea Commerce, L.P., NY Slip Op 00482 (2d Dept. 2011).

Here is the decision. 

Tomorrow's issue is trial practice.

Vehicle and Traffic Law.

 Practice point: A driver with the right-of-way is entitled to anticipate that other drivers will yield as required, pursuant to Vehicle and Traffic Law §§ 1128, 1143.

Students should note, however, that the driver with the right-of-way has the duty to maintain a proper lookout to avoid a collision.

The case is Bonilla v. Calabria, NY Slip Op 00481 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is Labor Law.

Contracts.

Practice point: Standing alone, a contractual obligation does not give rise to tort liability to a third party. 

Students should note, however, that a party contracting to render services may be liable to a third party if it negligently creates or exacerbates a dangerous condition.

The case is Bodenmiller v. Thermo Tech Combustion, Inc., NY Slip Op 00480 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is Vehicle and Traffic Law.