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)
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.
March 31, 2008
March 28, 2008
Medical Disqualification.
Practice point: In finding a candidate medically disqualified, a city agency may rely on its own medical director's conclusions, even when the candidate's private physician offers a conflicting opinion.
Case: Rivers v. Department of Sanitation, NY Slip Op 02645 (1st Dept. 2008)
Practice point: In finding a candidate medically disqualified, a city agency may rely on its own medical director's conclusions, even when the candidate's private physician offers a conflicting opinion.
Case: Rivers v. Department of Sanitation, NY Slip Op 02645 (1st Dept. 2008)
March 27, 2008
March 26, 2008
Administrative Code of City of NY § 7-201[c][2]
Practice point: The City cannot be held liable for a defect in a sidewalk unless it received written notice of the defect, or made a written acknowledgment of the condition, and failed to remedy the condition within 15 days after the notification or acknowledgment.
Case: Alvino v. City of New York, NY Slip Op 02544 (2d Dept. 2008)
Practice point: The City cannot be held liable for a defect in a sidewalk unless it received written notice of the defect, or made a written acknowledgment of the condition, and failed to remedy the condition within 15 days after the notification or acknowledgment.
Case: Alvino v. City of New York, NY Slip Op 02544 (2d Dept. 2008)
March 25, 2008
Domestic Relations Law § 236[B][3]
Practice point: Absent a proper written acknowledgment, a postnuptial agreement is unenforceable, even if the agreement was ratified either through word or conduct.
Case: Angel v. O'Neill, NY Slip Op 02640 (1st Dept. 2008)
Facts: The notary testified that the signature on the agreement was not hers, and the court found an obvious difference between the purported signature and the notary's admittedly genuine signature.
Practice point: Absent a proper written acknowledgment, a postnuptial agreement is unenforceable, even if the agreement was ratified either through word or conduct.
Case: Angel v. O'Neill, NY Slip Op 02640 (1st Dept. 2008)
Facts: The notary testified that the signature on the agreement was not hers, and the court found an obvious difference between the purported signature and the notary's admittedly genuine signature.
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