June 4, 2008

Adverse possession.

Practice point: If a municipality owns property in its governmental capacity, it cannot lose title through adverse possession.

Case: Gallo v. City of New York, NY Slip Op 04316 (2d Dept. 2008)

Click here for the uncorrected opinion.

June 3, 2008

The emergency doctrine.

Practice point: The emergency doctrine provides that when a person is faced with a sudden and unexpected situation which is not of the person's own making, and which leaves little or no time for deliberation, no negligence will attach if the person took reasonable and prudent action.

Case: Francis v. Guzman, NY Slip Op 04315 (2d Dept. 2008)

Click here for the uncorrected opinion.

June 2, 2008

Fraud.

Practice point: Liability for fraud may be premised on knowing participation in a scheme to defraud, even if that participation does not by itself suffice to constitute a fraud.

Case: Danna v. Malco Realty, Inc., NY Slip Op 04309 (2d Dept. 2008)

Click here for the uncorrected opinion.

May 30, 2008

Negligence claims against the State of New York.

Practice point: The State of New York is not an insurer of the safety of its roads and no liability will attach unless the State's alleged negligence in maintaining its roads in a reasonable condition is a proximate cause of the accident.

Case: Carlo v. State of New York, NY Slip Op 04305 (2d Dept. 2008)

May 29, 2008

Equitable estoppel.

Practice point: Equitable estoppel will bar the assertion of the Statute of Limitations as an affirmative defense when it was the defendant's wrongdoing which caused the delay between the accrual of the cause of action and the commencement of the legal proceeding.

Case: Bevinetto v. Plotnick, NY Slip Op 04302 (2d Dept. 2008)

May 28, 2008

Conditions precedent.

Practice point: A contractual duty will not be construed as a condition precedent absent clear language showing that the parties intended to make it a such a condition.

Case: Ashkenazi v. Kent South Associates, NY Slip Op 04300 (2d Dept. 2008)

May 27, 2008

Business judgment rule.

Practice point: The business judgment rule, which applies to condominium boards, prohibits judicial inquiry into the actions of the board as long as it acts for the condominium's purpose, within its authority and in good faith.

Case: Acevdeo v. Town N Country Condominium, NY Slip Op 04295 (2d Dept. 2008)

May 23, 2008

Labor Law § 240(1)

Practice point: An object falling from a minuscule height is not the type of elevation-related injury that the statute was intended to protect against. Moreover, for the statute to be implicated, the object must have been in the process of being hoisted or secured when it fell because of inadequate safety devices.

Case: Cambry v. Lincoln Gardens, NY Slip Op 04047 (2d Dept. 2008)

May 22, 2008

Abuse of process.

Practice point: Abuse of process is an intentional tort and, therefore, is governed by a one-year statute of limitations, pursuant to CPLR 215.

Case: Benyo v. Sikorjak, NY Slip Op 04044 (2d Dept. 2008)

May 21, 2008

Bifurcation.

Practice point: Where there are complex issues of liability and damages, bifurcation is appropriate because it may help in reaching a fair and expeditious resolution, pursuant to 22 NYCRR 202.42[a].

Case: Sommer v. Pierre, NY Slip Op 04219 (1st Dept. 2008)

May 20, 2008

Charging liens.

Practice point: A charging lien is available whether an attorney is discharged or withdraws.

Case: Delaj v. Jameson, NY Slip Op 04203 (1st Dept. 2008)