Labor Law § 240(1)
Practice point: To defeat summary judgment in a case based on violations of the Labor Law, defendant must establish that plaintiff had adequate safety devices available; that plaintiff knew that they were available and that plaintiff was expected to use them; that, for no good reason, plaintiff chose not to do so; and that, but for that choice, plaintiff would not have been injured.
Case: Kosavick v. Tishman Contr. Corp. of N.Y., NY Slip Op 03040 (1st Dept. 2008)
Facts: While performing demolition work, plaintiff was injured when he and his unsecured A-frame ladder were suddenly struck by a section of pipe he had cut, causing him to fall. Plaintiff had not been provided with adequate safety devices and no one was holding the ladder.
April 14, 2008
CPLR 3025(b)
Practice point: Although leave to amend a pleading is freely granted, it should not be granted simply because it is requested and without appropriate substantiation.
Case: Hoppe v. Board of Directors of the 51-78 Owners Corp., NY Slip Op 02771 (1st Dept. 2008)
Facts: One of the cooperative's shareholders sought to amend the complaint to include a breach of fiduciary duty claim against various past and present members of the cooperative corporation and its board, but did not allege any independent tortious conduct by any individual director.
Practice point: Although leave to amend a pleading is freely granted, it should not be granted simply because it is requested and without appropriate substantiation.
Case: Hoppe v. Board of Directors of the 51-78 Owners Corp., NY Slip Op 02771 (1st Dept. 2008)
Facts: One of the cooperative's shareholders sought to amend the complaint to include a breach of fiduciary duty claim against various past and present members of the cooperative corporation and its board, but did not allege any independent tortious conduct by any individual director.
April 11, 2008
Administrative Code of the City of New York § 7-201(c)(2)
Practice point: Before liability may be imposed, plaintiff must plead and prove that the City had prior written notice of transitory roadway or walkway conditions such as debris, oil, ice or sand.
Case: Farrell v. City of New York, NY Slip Op 02787 (2d Dept. 2008)
Practice point: Before liability may be imposed, plaintiff must plead and prove that the City had prior written notice of transitory roadway or walkway conditions such as debris, oil, ice or sand.
Case: Farrell v. City of New York, NY Slip Op 02787 (2d Dept. 2008)
April 10, 2008
April 9, 2008
CPLR 203(a)
Practice point: The mere filing of a motion for leave to amend the complaint to name an additional defendant is not itself the interposition of the claim, within the meaning of the statute, and the amended complaint must be timely served in order to have personal jurisdiction.
Case:Gomez v. City of New York, NY Slip Op 02764 (1st Dept. 2008)
Practice point: The mere filing of a motion for leave to amend the complaint to name an additional defendant is not itself the interposition of the claim, within the meaning of the statute, and the amended complaint must be timely served in order to have personal jurisdiction.
Case:Gomez v. City of New York, NY Slip Op 02764 (1st Dept. 2008)
April 8, 2008
Unjust enrichment.
Practice point: A plaintiff adequately states a cause of action for unjust enrichment when alleging that, on behalf of the business venture he entered into with defendant to market certain properties, he actively marketed the properties, and commissions were generated and paid to defendant, who ultimately diverted them, depriving plaintiff of his share of the commissions.
Case: Segal v. Cooper, NY Slip Op 02758 (1st Dept. 2008)
Practice point: A plaintiff adequately states a cause of action for unjust enrichment when alleging that, on behalf of the business venture he entered into with defendant to market certain properties, he actively marketed the properties, and commissions were generated and paid to defendant, who ultimately diverted them, depriving plaintiff of his share of the commissions.
Case: Segal v. Cooper, NY Slip Op 02758 (1st Dept. 2008)
April 7, 2008
April 4, 2008
Slander per se.
Practice point: Informing the parents of preschoolers that their children's teacher has been terminated is reasonably susceptible to a defamatory meaning and is slanderous per se because it directly implies that she had done something so egregious that it made her unfit to practice her profession even one more day.
Case: Lipman v. Ionescu, NY Slip Op 02745 (1st Dept. 2008)
Practice point: Informing the parents of preschoolers that their children's teacher has been terminated is reasonably susceptible to a defamatory meaning and is slanderous per se because it directly implies that she had done something so egregious that it made her unfit to practice her profession even one more day.
Case: Lipman v. Ionescu, NY Slip Op 02745 (1st Dept. 2008)
April 3, 2008
Negligent hiring or retention.
Practice point: Recovery on a negligent hiring or retention theory requires a showing that the employer had notice of the relevant tortious propensities of the wrongdoing employee.
Case: Coffey v. City of New York, NY Slip Op 02689 (1st Dept. 2008)
Facts: Plaintiff and decedents were injured when their automobile was struck by a vehicle driven by a City Corrections officer later determined to be intoxicated. He had been sent for inpatient alcohol rehabilitation three years earlier, due to persistent lateness and absenteeism. After release, he failed to continue treatment on an outpatient basis. His employment record revealed various infractions and a prior accident on the job, but with no alcohol involvement. He testified at deposition that he had been given two drinks by a fellow Corrections officer while on the job that night, and after work he met two other officers and consumed two beers. The accident occurred two hours after he left work, as he headed home.
The court found no evidence that the City knew of his propensity for drunk driving, and it could not reasonably have foreseen that he would drive while under the influence of alcohol.
Practice point: Recovery on a negligent hiring or retention theory requires a showing that the employer had notice of the relevant tortious propensities of the wrongdoing employee.
Case: Coffey v. City of New York, NY Slip Op 02689 (1st Dept. 2008)
Facts: Plaintiff and decedents were injured when their automobile was struck by a vehicle driven by a City Corrections officer later determined to be intoxicated. He had been sent for inpatient alcohol rehabilitation three years earlier, due to persistent lateness and absenteeism. After release, he failed to continue treatment on an outpatient basis. His employment record revealed various infractions and a prior accident on the job, but with no alcohol involvement. He testified at deposition that he had been given two drinks by a fellow Corrections officer while on the job that night, and after work he met two other officers and consumed two beers. The accident occurred two hours after he left work, as he headed home.
The court found no evidence that the City knew of his propensity for drunk driving, and it could not reasonably have foreseen that he would drive while under the influence of alcohol.
April 2, 2008
April 1, 2008
Medical Malpractice
Practice point: On a motion for summary judgment in a medical malpractice action, a defendant physician has the burden of establishing the absence of any departure from good and accepted medical practice, or, if there was a departure, that it did not injure plaintiff.
Case: Germaine v. Yu, NY Slip Op 02551 (2d Dept. 2008)
Facts: Shortly before noon, plaintiff arrived at the emergency room, complaining of abdominal pain, nausea, and constipation. An attending physician examined plaintiff at 12:45, and a resident examined her at approximately 1:00 o'clock. Several tests were ordered, and, before the tests were completed, the resident's shift ended and he left the hospital. Later, after additional testing, plaintiff was discharged, with a diagnosis of diverticulitis. Three days later, she was admitted to another hospital, where she was diagnosed with peritonitis and a perforated sigmoid colon, and underwent surgery.
The attending physician demonstrated that, when he left the hospital, he transferred responsibility for plaintiff's care to another attending physician, and was not responsible for any departures from accepted medical practice that occurred thereafter in either the supervision of the resident or the decision to discharge plaintiff.
Practice point: On a motion for summary judgment in a medical malpractice action, a defendant physician has the burden of establishing the absence of any departure from good and accepted medical practice, or, if there was a departure, that it did not injure plaintiff.
Case: Germaine v. Yu, NY Slip Op 02551 (2d Dept. 2008)
Facts: Shortly before noon, plaintiff arrived at the emergency room, complaining of abdominal pain, nausea, and constipation. An attending physician examined plaintiff at 12:45, and a resident examined her at approximately 1:00 o'clock. Several tests were ordered, and, before the tests were completed, the resident's shift ended and he left the hospital. Later, after additional testing, plaintiff was discharged, with a diagnosis of diverticulitis. Three days later, she was admitted to another hospital, where she was diagnosed with peritonitis and a perforated sigmoid colon, and underwent surgery.
The attending physician demonstrated that, when he left the hospital, he transferred responsibility for plaintiff's care to another attending physician, and was not responsible for any departures from accepted medical practice that occurred thereafter in either the supervision of the resident or the decision to discharge plaintiff.
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