Notice of Claim.

Practice point: On a motion to dismiss for failure to comply with General Municipal Law § 50-e[2], a defendant meets its burden by establishing that plaintiff failed to correctly identify the accident location.

Practitioners should note, however, that a court may, in its discretion, allow a mistaken notice of claim to be corrected as long as the mistake was made in good faith and the public corporation was not prejudiced thereby, pursuant to General Municipal Law § 50-e[6].

Case: Ming v. City of New York, NY Slip Op 07223 (2d Dept. 2008)

The opinion is here.

Labor Law.

Practice point: For purposes of a § 241(6) claim based on an accident on a loading dock, plaintiff’s reliance on an alleged violation of 12 NYCRR 23-2.1[a][1] is unavailing inasmuch as it specifically refers to a "passageway, walkway, stairway, or other thoroughfare."

Practitioners should note that a freight elevator is not a "material hoist" within the meaning of the Industrial Code at 12 NYCRR 23-6.1(d), 6.3(e)(3); 23-1.4[33].

Case: Barrios v. Boston Props. LLC, NY Slip Op 07579 (1st Dept. 2008)

The opinion is here.

Motion practice.

Practice point: Although motions to renew should be based on newly discovered facts which could not have been offered on the prior motion, courts have discretion to relax this requirement and grant the motion in the interest of justice.

Practitioners should note that, because the attorney’s affirmation properly explained why plaintiff’s medical expert's affirmation was unsigned and redacted, it was admissible, pursuant to CPLR 3101(d)(1)(i).

Case: Mattis v. Keen, Zhao, NY Slip Op 06935 (1st Dept. 2008)

The opinion is here.

Legal malpractice.

Practice point: On record evidence that defense counsel in the underlying case was authorized and prepared to settle, a finding that plaintiff had instructed its own counsel to effect a settlement would support a claim that the settlement opportunity was lost through malpractice.

Practitioners should note that, in this malpractice action, there was a fact question because of conflicting deposition testimony and affidavits as to whether plaintiff had instructed defendants to work to settle the underlying case.

Case: Silva v. Worby, Groner, Edelman, LLP, NY Slip Op 07071 (1st Dept. 2008)

The opinion is here.

Negligence.

Practice point: A defendant cannot be negligent, as a matter of law, when it merely lent its name to the bicycle race during which plaintiff-spectators were struck by the three-wheel scooter operating as one of the pace vehicles.

Practitioners should note that, absent control over the race, defendant had no duty of care.

Case: Chittick v. USA Cycling Inc., NY Slip Op 07043 (1st Dept. 2008)

The opinion is here.

Motion practice.

Practice point: In order to obtain relief from a judgment or order based on an excusable default, pursuant to CPLR § 5015(a)(1), a movant must offer a reasonable excuse for failing to appear and must demonstrate that the case or defense has merit.

Practitioners should note that the assessment of the sufficiency of the proffered excuse and the adequacy of merit rests with the sound discretion of the court.

Case: Carroll v. Nostra Realty Corp., NY Slip Op 07041 (1st Dept. 2008)

The opinion is here.

Motion practice.

Practice point: In opposition to a motion for summary judgment, a plaintiff may not raise a theory of liability not pleaded in the notice of claim, complaint or bill of particulars.

Practitioners should note that a plaintiff will be precluded from offering trial evidence regarding a theory of liability not set forth in the notice of claim.

Case: Sutin v. Manhattan & Bronx Surface Tr. Operating Auth., NY Slip Op 07032 (1st Dept. 2008)

The opinion is here.

Court holiday.

Today is a New York State Courts holiday and so there is no post on New York Law Notes.

The Courts reopen tomorrow and there will be a new post, as there is every Court day.

In the meantime, I hope you will enjoy today's day-off!

Attorneys' fees.

Practice point: Attorneys' fees and disbursements are incidents of litigation, and a prevailing party may not collect unless the award is authorized by agreement between the parties, by statute, or by court rule.

Practitioners should note that, even if there is sufficient authority for an attorney’s fee, the award is premature as long as the matter is still before the court.

Case: Siamos v. 36-02 35th Ave. Dev., LLC, NY Slip Op 06978 (2d Dept. 2008)

The opinion is here.

Defective sidewalks.

Practice point: The City can establish its entitlement to judgment as a matter of law by offering a municipal code enforcement officer's deposition testimony that a search of the City's prior written notice logbook turned up no record of the required notice of the alleged defective sidewalk condition.

Practitioners should note that, after a repair, the recurrence of an alleged sidewalk defect does not abrogate the need for prior written notice.

Case: McCarthy v. City of White Plains, NY Slip Op 06969 (2d Dept. 2008)

The opinion is here.

Dog bites.

Practice point: A dog owner incurs no liability for injuries which allegedly were caused by a domestic animal with no known vicious propensities.

Practitioners should note that, on sufficient facts, there could be a cause of action for negligent supervision of an injured infant-plaintiff.

Case: Frank v. Eaton, NY Slip Op 06959 (2d Dept. 2008)

The opinion is here.