Collateral estoppel.

Practice point: A party will be estopped from relitigating an issue which was clearly raised in a prior action and which was decided against that party.

Practitioners should note that, in order to invoke the doctrine, the identical issue must necessarily have been decided in the prior action and it must be decisive of the present action. In addition, the party to be precluded must have had a full and fair opportunity to contest the prior determination.

Case: Comprehensive Med. Care of N.Y., P.C. v. Hausknecht, NY Slip Op 08084 (2d Dept. 2008)

The opinion is here.

Exposure to toxic substances.

Practice point: To maintain a cause of action for negligent infliction of emotional distress following exposure to a toxic substance, a plaintiff must establish both that there was exposure to a disease-causing agent and that there is a ‘rational basis' for plaintiff’s fear of contracting a disease.

Practitioners should note that the Court has construed ‘rational basis’ to mean the clinically-demonstrable presence of a toxin in plaintiff's body, or some other indication of a toxin-induced disease.

Case: Cleary v. Wallace Oil Co., Inc., NY Slip Op 08083 (2d Dept. 2008)

The opinion is here.

General Obligations Law.

Practice point: An agreement to exempt a lessor from its own negligence is void and unenforceable, pursuant to § 5-321.

Practitioners should note that where the liability is to a third party, the statute does not preclude enforcement of an indemnification provision in a commercial lease negotiated at arm's length between two sophisticated parties, when coupled with an insurance procurement requirement.

Case: Castano v. Zee-Jay Realty Co., NY Slip Op 08081 (2d Dept. 2008)

The opinion is here.

Notice of Claim.

Practice point: Leave to file a late Notice of Claim will be denied when, after a seven-month delay, petitioner fails to identify any documents, either from the police investigation or from the criminal proceedings, which would assist respondent in investigating a claim of negligence.

Pratcitioners should note that the fact that there was media coverage of the claim-related incident does not establish that respondent should have known about the incident or should have anticipated a claim of negligence.

Case: Matter of Bailey v. City of New York Hous. Auth., NY Slip Op 08025 (1st Dept. 2008)

The opinion is here.

Education Law.

Practice point: A petitioner's challenge to the termination of probationary employment under a physical education license will be dismissed if petitioner fails to establish that the termination was for a constitutionally impermissible purpose, in violation of a statute, or otherwise done in bad faith.

Practitioners should note that, even if petitioner were not given the 60-day statutory notice, which, pursuant to Education Law
§ 2573[1][a]), would require one day's pay for each day the notice is late, petitioner is not entitled to the payment when, on termination, petitioner immediately resumed duties at the same school and at the same rate of pay under the common branch license under which petitioner was fully tenured.

Case: Curcio v. New York City Dept. of Educ., NY Slip Op 08020 (1st Dept. 2008)

The opinion is here.

Municipal liability.

Practice point: The City is not a proper party to an action where plaintiff sustained injuries as a result of tripping and falling on public school grounds.

Practitioners should note that, although the 2002 amendments to the Education Law (L 2002, ch 91) give the mayor greater control over education and limit the Department of Education’s powers, they do not establish a basis to hold the City liable for this plaintiff’s personal injuries.

Case: Bailey v. City of New York, NY Slip Op 08003 (1st Dept. 2008)

The opinion is here.

Court of Claims Act.

Practice point: An otherwise timely claim will be dismissed if it is verified only by plaintiff’s attorney and thus is noncompliant with the verification requirement of § 8-b(4).

Practitioners should note that CPLR 205(a), which allows re-commencement of an action which was terminated not on the merits within six months of dismissal, does not apply to claims under § 8-b, the requirements of which must be strictly construed and the terms of which make no reference to the CPLR.

Case: Taylor v. State of New York, NY Slip Op 07976 (1st Dept. 2008)

The opinion is here.

You can find the statutory language here.

Labor Law.

Practice point: An accident falls within the scope of § 240(1) when there is evidence that plaintiff was struck by a falling object which could have been, but was not, adequately secured by one of the devices enumerated in the statute.

Practitioners should note that an alleged violation of Industrial Code 9 NYCRR §§ 23-5.1(c) is insufficiently specific to support a
§ 241(6) claim.

Case: Greaves v. Obayashi Corp., NY Slip Op 07970 (1st Dept. 2008)

The opinion is here.

You can find the Code's language here.

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.