Indemnification.

Practice point: A party is entitled to contractual indemnification when the intention to indemnify is clearly implied from the language and purposes of the entire agreement and the surrounding circumstances.

Case: Torres v. LPE Land Dev. & Constr., Inc., NY Slip Op 06702 (2d Dept. 2008)

The opinion is here.

Products liability.

Practice point: For a judgment as a matter of law in an action to recover for injuries allegedly caused by a defective product, a defendant must establish that the product performed as intended, or that plaintiff’s injuries likely were caused by something not attributable to a defect in the product’s design or manufacture.

Case: Calandra v. Crane Plumbing, NY Slip Op 06692 (2d Dept. 2008)

The opinion is here.

Employment Law.

Practice point: It is settled that, in deciding the issue of special employment, a putative special employer’s title, e.g., a managing agent, is not controlling. Instead, courts will look to the actual working relationship between the employer and the employee.

Case: Bautista v. Frankel Realty, Inc., NY Slip Op 06685 (1st Dept. 2008)

The opinion is here.

Motion practice.

Practice point: A summary judgment motion must include a complete set of pleadings and a supporting affidavit, pursuant to CPLR 3212(b).

Case: Zellner v. Tarnell, NY Slip Op 06558 (2d Dept. 2008)

The opinion is here.

Legal malpractice.

Practice point: The settlement of an underlying action, in and of itself, does not preclude a subsequent action for legal malpractice if the settlement was effectively compelled by the mistakes of counsel.

Case: Levitt & Assoc. v. Balkin, NY Slip Op 06640 (2d Dept. 2008)

The opinion is here.

Duty to warn.

Practice point: A landowner has a duty to warn of a dangerous condition where the hazard is latent.

Case: Roros v. Oliva, NY Slip Op 06637 (2d Dept. 2008)

The opinion is here.

Municipal liability.

Practice point: A municipality is immune from liability arising from a claim that it negligently designed the sewerage system, but not from a claim that it negligently maintained the sewerage system, since this implicates conduct which is ministerial in nature.

Case: Moore v. City of Yonkers, NY Slip Op 06636 (2d Dept. 2008)

The opinion is here.

Summary judgment.

Practice point: A summary judgment motion may not be made more than 120 days after the filing of the note of issue, except with leave of court on good cause shown, pursuant to CPLR 3212(a).

Case: Lyons v. Donnelly, NY Slip Op 06633 (2d Dept. 2008)

The opinion is here.

Vicarious liability.

Practice point: A private attending physician’s affiliation with a hospital or other medical facility, not amounting to employment, is generally insufficient to impute a doctor's negligent conduct to the hospital or the medical facility.

Case: Keitel v. Kurtz, NY Slip Op 06632 (2d Dept. 2008)

The opinion is here .

Res judicata.

Practice point: A disposition on the merits bars litigation between the same parties, or those in privity with them, on a cause of action arising out of the same transaction or series of transactions as a cause of action which was, or which could have been, raised in a prior proceeding.

Case: Barash v. Northern Trust. Corp., NY Slip Op 06628 (2d Dept. 2008)

The opinion is here.

Medical malpractice.

Practice point: The required elements of proof in a medical malpractice action are (1) a deviation or departure from good and accepted standards of medical practice, and (2) evidence that the departure was a proximate cause of plaintiff’s injury.

Case: Elias v. Bash, NY Slip Op 06587 (2d Dept. 2008)

The opinion is here.