Pleadings.

Practice point: An answer to an amended complaint served pursuant to CPLR 3025(d) constitutes an original answer to the amended complaint, and affirmative defenses raised in that answer are not limited to those which had been asserted in the original answer.

Practitioners should note that a plaintiff cannot avoid the application of this rule by simply denominating a pleading as supplemental when, in fact, it asserts new injuries and a new category of damages, and which, therefore, is an amended pleading.

Practitioners should further note that a supplemental complaint does not supersede the original complaint, but is in addition to it, and the original answer remains in effect. In its answer to the supplemental complaint, a defendant may not assert a new affirmative defense unless it is responsive to the new matter alleged.

Case: Mendrzycki v. Cricchio, NY Slip Op 09044 (2d Dept. 2008)

The opinion is here.

Rear-end collisions.

Practice point: A rear-end collision with a stopped or braking vehicle creates a prima facie case of the moving vehicle driver’s negligence, and requires the driver to offer an adequate non-negligent explanation for the accident.

Practitioners should note that, standing alone, a claim that the driver ahead stopped suddenly does not defeat the presumption of negligence. However, evidence that a vehicle was rear-ended and propelled into the stopped vehicle in front of it may provide a sufficient non-negligent explanation, pursuant to Malak v. Wynder, NY Slip Op 09043 (2d Dept. 2008).

Case: Jumandeo v. Franks, NY Slip Op 09035 (2d Dept. 2008)

The opinion is here.

Privileged communications.

Practice point: An attorney may reveal confidences or secrets when their publication is necessary to defend against an accusation of wrongful conduct, pursuant to DR 4-101(C).

Practitioners should note that the rule may apply to allegations of malpractice and does not require an allegation of conduct rising to the level of criminality, pursuant to Restatement [Third] of Law Governing Lawyers § 64, Comment c.

Case: Hélie v. McDermott, Will & Emery, NY Slip Op 09289 (1st Dept. 2008)

The opinion is here.

Statute of limitations.

Practice point: The statute of limitations cannot be asserted sua sponte by the court as a basis for denying an unopposed motion for a default judgment.

Practitioners should note that the statute of limitations must be pleaded, if at all, as an affirmative defense.

Case: Orix Fin. Servs., Inc. v. Haynes, NY Slip Op 09270 (1st Dept. 2008)

The opinion is here.

Cooperatives Law.

Practice point: Absent evidence of self-dealing, fraud or some other breach of fiduciary duty, a shareholder will not defeat the business judgment rule in disputing a coop board's decisions regarding repairs to the building.

Practitioners should note that, by refusing to pay assessments for major structural repairs, a plaintiff waives the claim for breach of the covenant of quiet enjoyment.

Case: Parker v. Marglin, NY Slip Op 09266 (1st Dept. 2008)

The opinion is here.

Disclosure.

Practice point: Pursuant to CPLR 3101(a), there must be full disclosure of whatever is material and necessary in the prosecution or defense of an action.

Practitioners should note that "material and necessary" is interpreted liberally to require disclosure of anything which bears on the controversy and which will help to sharpen the issues and reduce delays. The standard is usefulness and reason.

Case: Friel v. Papa, NY Slip Op 09028 (2d Dept. 2008)

The opinion is here.

Attorneys as parties to an action.

Practice point: An attorney who is a party to an action must support a pleading with an affidavit, notwithstanding CPLR 2106, which otherwise allows an attorney to submit an affirmation.

Practitioners should note that this deficiency will be fatal to the pleading.

Case: Finger v. Saal, NY Slip Op 09027 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: A plaintiff who pleads the defense of failure to state a cause of action will not win dismissal in the absence of a motion.

Practitioners should note that this motion may be made at any time.

Case: Butler v. Catinella, NY Slip Op 09018 (2d Dept. 2008)

The opinion is here.

Construing insurance policies.

Practice point: If the policy on its face is reasonably susceptible of only one meaning, a court is not free to alter the agreement. If there is any ambiguity, however, it must be construed in favor of the insured and against the insurer.

Practitioners should note that for an insurer to prevail on its interpretation of an ambiguous term, the insurer must demonstrate, in addition to reasonability, that its interpretation is the only fair one.

Case: Antoine v. City of New York, NY Slip Op 09010 (2d Dept. 2008)

The opinion is here.

Disclosure.

Practice point: While CPLR 3101(a) provides for full disclosure of whatever is material and necessary to prosecute an action, unlimited disclosure is not permitted.

Practitioners should note that, pursuant to CPLR 3103(a), a court may deny, limit, condition or regulate the use of any disclosure device so as to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person.

Case: Lacqua v. Staten Is. Univ. Hosp., NY Slip Op 08712 (2d Dept. 2008)

The opinion is here.

Snow and ice removal.

Practice point: An owner of property abutting a public sidewalk is not liable for pedestrian injuries arising out of the failure to remove snow and ice which naturally accumulates on the sidewalk, unless a statute or ordinance specifically imposes tort liability for not doing so.

Practitioners should note that, even absent such a statute or ordinance, there might be liability if the owner, or someone acting on the owner’s behalf, undertakes snow and ice removal efforts which make the naturally-occurring conditions more hazardous. The failure to remove all the snow and ice from the sidewalk does not constitute negligence.

Case: Cruz v. County of Nassau, NY Slip Op 08699 (2d Dept. 2008)

The opinion is here.