Assumption of the risk.

Practice point: A voluntary participant in a sport assumes the known risks normally associated with it. However, participants do not assume the risks of reckless or intentional conduct or concealed or unreasonably increased risks. While being struck in the head by a baseball is a known risk inherent in the sport, a plaintiff's deposition testimony, along with affidavits of plaintiff’s teammates, may raise a triable issue of fact as to whether an alleged cracked batter's helmet unreasonably increased the risk of injury.

Case: Fithian v. Sag Harbor Union Free School Dist., NY Slip Op 06798 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction; accept all facts as alleged in the pleading to be true; accord the plaintiff the benefit of every possible inference; and determine only whether the facts as alleged fit within any cognizable legal theory. However, bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference.

Case: Breytman v. Olinville Realty, LLC, NY Slip Op 06787 (2d Dept. 2008)

The opinion is here.

Contracts.

Practice point: A contracting party’s exercise of a discretionary right may breach the implied obligation of good faith and fair dealing if it frustrates the basic purpose of the agreement and deprives the other party of its benefits under the contract.

Case: C & E 608 Fifth Ave. Holding, Inc. v. Swiss Ctr., Inc., NY Slip Op 06743 (1st Dept. 2008)

The opinion is here.

Labor Law.

Practice point: A motion to dismiss a cause of action under
§ 240(1) and § 241(6) must be denied when the record does not establish, as a matter of law, that plaintiff's acts were the sole proximate cause of the accident. The court will consider evidence that the unsecured ladder on which the injured worker was standing collapsed, and that no other safety devices were provided.

Case: Vargas v. NYCTA, NY Slip Op 06740 (1st Dept. 2008)

The opinion is here.

Notice of Claim.

Practice point: A court may grant a petition for leave to serve an amended notice of claim, pursuant to General Municipal Law § 50-e(6), if the original notice of claim was not sworn to by or on behalf of the petitioner, pursuant to General Municipal Law § 50-e[2].

Case: Figgs v. County of Suffolk, NY Slip Op 06706 (2d Dept. 2008)

The opinion is here.

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.