Snowstorms.
Practice point: Property owners have no obligation to maintain a constantly dry floor during a snowstorm, and are not required to cover the entire floor with mats.
Case: Meza v. Consolidated Edison, NY Slip Op 03324 (1st Dept. 2008)
April 28, 2008
April 25, 2008
CPLR 2221[e][2], [3]
Practice point: A motion for leave to renew must be supported by facts, not offered on the prior motion, that would change the prior determination. In addition, the motion must contain a reasonable justification for the failure to present the facts on the prior motion.
Case: Gale v. Lotito, NY Slip Op 03457 (2d Dept. 2008)
Practice point: A motion for leave to renew must be supported by facts, not offered on the prior motion, that would change the prior determination. In addition, the motion must contain a reasonable justification for the failure to present the facts on the prior motion.
Case: Gale v. Lotito, NY Slip Op 03457 (2d Dept. 2008)
April 24, 2008
Education Law § 3813
Practice point: A notice of claim against a school district must satisfy the requirements of General Municipal Law § 50-e, including statements of the nature of the claim and the alleged damages or injuries.
Case: Melissa G. v. North Babylon Union Free School District, NY Slip Op 03456 (2d Dept. 2008)
Practice point: A notice of claim against a school district must satisfy the requirements of General Municipal Law § 50-e, including statements of the nature of the claim and the alleged damages or injuries.
Case: Melissa G. v. North Babylon Union Free School District, NY Slip Op 03456 (2d Dept. 2008)
April 23, 2008
Contract law.
Practice point: In adjudicating the rights of parties to a contract, courts may not fashion a new contract under the guise of contract construction. Nor may they imply a condition which the parties chose not to put in their contract.
Case: Camaiore v. Farance, NY Slip Op 03390 (1st Dept. 2008)
Practice point: In adjudicating the rights of parties to a contract, courts may not fashion a new contract under the guise of contract construction. Nor may they imply a condition which the parties chose not to put in their contract.
Case: Camaiore v. Farance, NY Slip Op 03390 (1st Dept. 2008)
April 22, 2008
How far can the Appellate Division reach in its review?
Practice point: The Appellate Division's reach in reviewing the evidence in a nonjury trial is as broad as that of the trial court. However, a fact-finding court's conclusions will not be disturbed on appeal unless they obviously could not have been reached under any fair interpretation of the evidence, especially when the findings rest in large measure on witness credibility.
Case: Kalt v. Ritman, NY Slip Op 03387 (1st Dept. 2008)
Practice point: The Appellate Division's reach in reviewing the evidence in a nonjury trial is as broad as that of the trial court. However, a fact-finding court's conclusions will not be disturbed on appeal unless they obviously could not have been reached under any fair interpretation of the evidence, especially when the findings rest in large measure on witness credibility.
Case: Kalt v. Ritman, NY Slip Op 03387 (1st Dept. 2008)
April 21, 2008
CPLR 4401-a
Practice point: A cause of action for medical malpractice based on lack of informed consent must be dismissed if plaintiff does not offer expert testimony establishing that the disclosed information was qualitatively insufficient.
Case: Rodriguez v. New York City Health & Hospitals Corp., NY Slip Op 03383 (1st Dept. 2008)
Practice point: A cause of action for medical malpractice based on lack of informed consent must be dismissed if plaintiff does not offer expert testimony establishing that the disclosed information was qualitatively insufficient.
Case: Rodriguez v. New York City Health & Hospitals Corp., NY Slip Op 03383 (1st Dept. 2008)
April 18, 2008
General Municipal Law § 50-e[1][a],[5]
Practice point: Standing alone, the failure to proffer a reasonable excuse for delay in serving a notice of claim is not fatal to a motion for leave to file a late notice. However, without it, plaintiffs must demonstrate that the City had timely actual notice of the claim and suffered no prejudice by reason of the delay.
Case: Santopietro v. City of New York, NY Slip Op 03125 (1st Dept. 2008)
Practice point: Standing alone, the failure to proffer a reasonable excuse for delay in serving a notice of claim is not fatal to a motion for leave to file a late notice. However, without it, plaintiffs must demonstrate that the City had timely actual notice of the claim and suffered no prejudice by reason of the delay.
Case: Santopietro v. City of New York, NY Slip Op 03125 (1st Dept. 2008)
April 17, 2008
Negligent design.
Practice point: Under New York law, a manufacturer cannot be held liable for not adopting an alternative product design which is not shown to retain the inherent usefulness of the product when manufactured according to the more risky, but otherwise lawful, design that actually was used.
Case: Rose v. Brown & Williamson Tobacco Corp., NY Slip Op 03147 (1st Dept.)
Facts: Plaintiff developed lung cancer and neurological damage as the result of decades of cigarette-smoking. In her negligent design claim, plaintiff contended that the tobacco company should have sold only "light" cigarettes with relatively low levels of cancer-causing tar and addictive nicotine. The jury returned a plaintiff's verdict, but the Appellate Division reversed the denial of defendant's motion for a judgment notwithstanding the verdict. While "light" cigarettes were available during the relevant period, plaintiff failed to present any evidence that they appealed to more than a small portion of the cigarette-smoking public. Stated otherwise, the record contained no basis for a finding that "light" cigarettes have the same utility for the vast majority of smokers as do regular cigarettes.
Practice point: Under New York law, a manufacturer cannot be held liable for not adopting an alternative product design which is not shown to retain the inherent usefulness of the product when manufactured according to the more risky, but otherwise lawful, design that actually was used.
Case: Rose v. Brown & Williamson Tobacco Corp., NY Slip Op 03147 (1st Dept.)
Facts: Plaintiff developed lung cancer and neurological damage as the result of decades of cigarette-smoking. In her negligent design claim, plaintiff contended that the tobacco company should have sold only "light" cigarettes with relatively low levels of cancer-causing tar and addictive nicotine. The jury returned a plaintiff's verdict, but the Appellate Division reversed the denial of defendant's motion for a judgment notwithstanding the verdict. While "light" cigarettes were available during the relevant period, plaintiff failed to present any evidence that they appealed to more than a small portion of the cigarette-smoking public. Stated otherwise, the record contained no basis for a finding that "light" cigarettes have the same utility for the vast majority of smokers as do regular cigarettes.
April 16, 2008
Motion to vacate an arbitration award.
Practice point: In light of the arbitrator's conclusions that a teacher in the New York City school system for more than 23 years had successfully undergone treatment for her addiction and that she was "fit to teach," the arbitration award imposing a fine equal to two months' salary, rather than termination, was not irrational and did not violate strong public policy.
Case: City School District of the City of New York v. Lorber, NY Slip Op 03050 (1st Dept. 2008)
Practice point: In light of the arbitrator's conclusions that a teacher in the New York City school system for more than 23 years had successfully undergone treatment for her addiction and that she was "fit to teach," the arbitration award imposing a fine equal to two months' salary, rather than termination, was not irrational and did not violate strong public policy.
Case: City School District of the City of New York v. Lorber, NY Slip Op 03050 (1st Dept. 2008)
April 15, 2008
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.
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.
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