General Municipal Law § 50-i
Practice point: While infancy automatically tolls the one-year and 90-day statute of limitations for commencing an action against a municipality, infancy alone does not compel the granting of a motion for leave to serve a late notice of claim when the delay is not the product of the infancy.
Case: Arias v. Kings County Hospital Center, NY Slip Op 03407 (2d Dept. 2008)
April 30, 2008
Custody rights.
Practice point: As between a parent and a nonparent, the parent has the superior custody right which cannot be denied unless the nonparent establishes that there is an extraordinary circumstance such as surrender, abandonment, persistent neglect, unfitness, or involuntary disruption of custody over an extended period of time.
Case: Cockrell v. Burke, NY Slip Op 03452 (2d Dept. 2008)
Practice point: As between a parent and a nonparent, the parent has the superior custody right which cannot be denied unless the nonparent establishes that there is an extraordinary circumstance such as surrender, abandonment, persistent neglect, unfitness, or involuntary disruption of custody over an extended period of time.
Case: Cockrell v. Burke, NY Slip Op 03452 (2d Dept. 2008)
April 29, 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.
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