Fraud.

Practice point: A plaintiff fails to plead a cause of action for fraud with sufficient particularity, pursuant to CPLR 3016[b], merely by alleging that defendant's representations were false, absent factual support for that assertion, and without pleading any of the other elements of fraud.

Practitioners should note that the essential elements of a cause of action sounding in fraud are representation of a material existing fact, falsity, scienter, deception and injury.

Case: Caldwell v. Gumley-Haft L.L.C., NY Slip Op 07968 (1st Dept. 2008)

The opinion is here.

Duty of care.

Practice point: In a suit involving leased commercial property, defendant cannot be liable for plaintiff’s injuries absent evidence that defendant occupied, controlled or was responsible for maintaining the area where plaintiff fell.

Practitioners should note that defendant owed no duty to plaintiff to maintain the area outside the boundaries described in the lease.

Case: Kaplan v. New York Mercantile Exch., NY Slip Op 07964 (1st Dept. 2008)

The opinion is here.

Construction Law.

Practice point: If a building was constructed in compliance with code specifications and industry standards applicable at the time, the owner is under no legal duty to modify the building thereafter in the wake of changed standards.

Practitioners should note that, for a plaintiff seeking damages for injuries suffered allegedly because of negligent building design, the legal issue is not whether there was a way to construct the building so as to avoid any possibility of persons being hurt; it is whether the building’s design violated safety standards in effect at the time it was built.

Case: Hotaling v. City of New York, NY Slip Op 07951 (1st Dept. 2008)

The opinion is here.

Labor Law.

Practice point: Owners of one-family and two-family dwellings are exempt from statutory liability, pursuant to Labor Law §§ 240 and 241, if they contract for, but do not direct or control, work performed on their property.

Practitioners should note that, although the homeowner exemption does not apply where a one-family dwelling’s owner uses it exclusively for commercial purposes, the fact that there is a home office does not deprive an apartment of its essentially residential character.

Case: DeSabato v. 674 Carroll St. Corp., NY Slip Op 07856 (2d Dept. 2008)

The opinion is here.

Trusts and Estates Law.

Practice point: As a fiduciary, a trustee bears the duty of complete loyalty to the trust’s beneficiaries, regardless of the fact that the settlor's directions give the trustee a free hand.

Practitioners should note that a trustee is liable for a breach committed in bad faith, intentionally, or with reckless indifference to the interests of the beneficiaries.

Case: Boles v. Lanham, NY Slip Op 07848 (2d Dept. 2008)

The opinion is here.

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.