Practice point: In exercising its discretion to grant leave to serve an amended pleading, the court will consider how long the amending party was aware of the facts on which the motion is predicated; whether a reasonable excuse for the delay is offered; and whether the other side will be prejudiced.
Practitioners should note that where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave to amend will be denied.
Case: Brooks v. Robinson, NY Slip Op 08439 (2d Dept. 2008)
The opinion is here.
November 20, 2008
November 19, 2008
Settling claims.
Practice point: An attorney has no implied power by virtue of the general retainer, standing alone, to compromise or settle a client's claim.
Practitioners should note that a general release and stipulation of discontinuance will be vacated, and the case restored, on evidence that plaintiff neither authorized nor consented to the settlement.
Case: Blakney v. Leathers, NY Slip Op 08437 (2d Dept. 2008)
The opinion is here.
Practitioners should note that a general release and stipulation of discontinuance will be vacated, and the case restored, on evidence that plaintiff neither authorized nor consented to the settlement.
Case: Blakney v. Leathers, NY Slip Op 08437 (2d Dept. 2008)
The opinion is here.
November 18, 2008
Vehicle and Traffic Law §§ 1143 and 1160(e).
Practice point: A driver is not obligated to anticipate that a vehicle parked on the shoulder of a road will suddenly and unexpectedly move into a travel lane.
Practitioners should note that such an event will likely implicate the emergency doctrine, and the driver’s staying in his or her own lane and applying the brakes will be reasonable as a matter of law under this circumstance which is not of the driver’s own making.
Case: Albinowski v. Hoffman, NY Slip Op 08434 (2d Dept. 2008)
The opinion is here.
Practitioners should note that such an event will likely implicate the emergency doctrine, and the driver’s staying in his or her own lane and applying the brakes will be reasonable as a matter of law under this circumstance which is not of the driver’s own making.
Case: Albinowski v. Hoffman, NY Slip Op 08434 (2d Dept. 2008)
The opinion is here.
November 17, 2008
Service of process.
Practice point: A plaintiff establishes personal jurisdiction, pursuant to CPLR 308(2), when the process server delivered the summons with notice to a suitable person at defendant's place of business, and this person accepted the documents before handing them back and directing the process server to place them in defendant's mailbox.
Practitioners should note that service was valid even though plaintiff did not list the individual defendant's name on the mailing envelope, since the summons gave sufficient notice to defendant, an attorney, that he was being sued in his individual capacity.
Case: Pressley v. Shneyer, NY Slip Op 08412 (1st Dept. 2008)
The opinion is here.
Practitioners should note that service was valid even though plaintiff did not list the individual defendant's name on the mailing envelope, since the summons gave sufficient notice to defendant, an attorney, that he was being sued in his individual capacity.
Case: Pressley v. Shneyer, NY Slip Op 08412 (1st Dept. 2008)
The opinion is here.
November 14, 2008
Gift certificates.
Practice point: General Business Law § 396-i regulates gift certificates and gift cards, and, pursuant to i[3], requires that the terms and conditions shall be clearly and conspicuously stated thereon, including whether any fees are assessed against the balance.
Practitioners should note that while the statute does not expressly provide for a private right of action, there is nothing in the statutory language to indicate that the Legislature intended to abrogate any common-law remedy arising from alleged deceptive or improper practices concerning gift certificates or cards. In addition, a § 349 cause of action may be maintained as to all deceptive acts or practices declared to be unlawful, regardless of any other State statute.
Case: Llanos v. Shell Oil Co., NY Slip Op 08099 (2d Dept. 2008)
The opinion is here.
Practitioners should note that while the statute does not expressly provide for a private right of action, there is nothing in the statutory language to indicate that the Legislature intended to abrogate any common-law remedy arising from alleged deceptive or improper practices concerning gift certificates or cards. In addition, a § 349 cause of action may be maintained as to all deceptive acts or practices declared to be unlawful, regardless of any other State statute.
Case: Llanos v. Shell Oil Co., NY Slip Op 08099 (2d Dept. 2008)
The opinion is here.
November 13, 2008
Commencing an action.
Practice point: The commencement of an action by plaintiff’s filing a notice of petition and a petition with a verified complaint is jurisdictionally sufficient.
Practitioners should note that plaintiff's confusion between the form of an action and the form of a special proceeding is not a ground for dismissal.
Case: Ling Fei Sun v. City of New York, NY Slip Op 08098 (2d Dept. 2008)
The opinion is here.
Practitioners should note that plaintiff's confusion between the form of an action and the form of a special proceeding is not a ground for dismissal.
Case: Ling Fei Sun v. City of New York, NY Slip Op 08098 (2d Dept. 2008)
The opinion is here.
November 12, 2008
Municipal liability.
Practice point: A municipality owes to the public the absolute duty of keeping its streets in a reasonably safe condition.
Practitioners should note that, when it comes to traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision, and liability requires proof that the State's traffic design plan evolved without adequate study or lacked reasonable basis.
Case: Fan Guan v. State of New York, NY Slip Op 08089 (2d Dept. 2008)
The opinion is here.
Practitioners should note that, when it comes to traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision, and liability requires proof that the State's traffic design plan evolved without adequate study or lacked reasonable basis.
Case: Fan Guan v. State of New York, NY Slip Op 08089 (2d Dept. 2008)
The opinion is here.
November 11, 2008
Medical malpractice.
Practice point: To establish a prima facie case on liability, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred; (2) that the defendant breached that standard of care; and (3) that the breach was the proximate cause of plaintiff’s injury.
Practitioners should note that expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause.
Case: Deadwyler v. North Shore Univ. Hosp. at Plainview, NY Slip Op 08087 (2d Dept. 2008)
The opinion is here.
Practitioners should note that expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause.
Case: Deadwyler v. North Shore Univ. Hosp. at Plainview, NY Slip Op 08087 (2d Dept. 2008)
The opinion is here.
November 10, 2008
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.
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.
November 7, 2008
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.
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.
November 6, 2008
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.
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.
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