Personal jurisdiction.

Practice point: Failure to serve process leaves the court without personal jurisdiction over a defendant, and all subsequent proceedings are thereby rendered null and void.

Practitioners should note that, pursuant to CPLR 5015(a)(4), a default judgment must be vacated once a movant demonstrates the lack of personal jurisdiction.

Case: Hossain v. Fab Cab Corp., NY Slip Op 09561 (2d Dept. 2008)

The opinion is here.

Personal jurisdiction.

Practice point: Failure to serve process leaves the court without personal jurisdiction over a defendant, and all subsequent proceedings are thereby rendered null and void.

Practitioners should note that, pursuant to CPLR 5015(a)(4), a default judgment must be vacated once a movant demonstrates lack of personal jurisdiction.

Case: Hossain v. Fab Cab Corp., NY Slip Op 09561 (2d Dept. 2008)

The opinion is here.

Labor Law.

Practice point: Painting is a covered activity, pursuant to § 240(1), and, in order to be actionable, it need not be incidental to other specified activities such as construction, repair or alteration.

Practitioners should note that, by itself, a fall from a ladder is insufficient to impose statutory liability. There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing plaintiff's injuries.

Case: Artoglou v. Gene Scappy Realty Corp., NY Slip Op 09542 (2d Dept. 2008)

The opinion is here.

Equitable estoppel.

Practice point: To estop the assertion of a statute of limitations defense, plaintiff must establish by clear and convincing evidence that the action was not timely commenced because of defendant’s fraud, deception or misrepresentation.

Practitioners should note that the statute will not be tolled when plaintiff failed to plead either fraud or fraudulent concealment, but only alleged medical malpractice based on defendant's failure to appreciate the information contained in a radiology report.

Case: Bayuk v. Gilbert, NY Slip Op 09460 (1st Dept. 2008)

The opinion is here.

Corporations.

Practice point: A corporation must appear by an attorney, pursuant to CPLR 321(a).

Practitioners should note that, to avoid the statutory requirement, the corporation may assign its claims to an appropriate individual plaintiff.

Case: Kinlay v. Henley, NY Slip Op 09450 (1st Dept. 2008)

The opinion is here.

Negligence.

Practice point: Deposition testimony that the floor on which plaintiff slipped was "very shiny" and "overwaxed," without more, does not support an inference of negligent waxing or polishing.

Practitioners should note that no inference of negligence can be drawn from the fact that, after plaintiff fell, a carpet and a warning sign were placed on the floor.

Case: Purcell v. York Bldg. Maintenance Corp., NY Slip Op 09439 (1st Dept. 2008)

The opinion is here.

Right of way.

Practice point: A driver facing a red flashing light must stop before entering the intersection, pursuant to Vehicle and Traffic Law § 1113(a), and then proceed according to the rules applicable after stopping at a stop sign. A driver who fails to yield the right-of-way after stopping at a stop sign is in violation of § 1142(a), and is negligent as a matter of law.

Practitioners should note that a driver with the right-of-way is entitled to anticipate that others will obey the applicable traffic laws and yield the right-of-way.

Case: Melendez v. County of Nassau, NY Slip Op 09367 (2d Dept. 2008)

The opinion is here.

Trivial defects.

Practice point: Injuries resulting from trivial defects are not actionable.

Practitioners should note that there is no 'minimal dimension test' or per se rule that, in order to be actionable, a defect must be of a certain height or depth. Instead, a court will consider the width, depth, elevation, irregularity and appearance of the defect, along with the time, place and circumstance of the injury.

Case: Berry v. Rocking Horse Ranch Corp., NY Slip Op 09342 (2d Dept. 2008)

The opinion is here.

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.