Practice point: A motion to preclude testimony of plaintiff's treating physician will be denied, notwithstanding any failure or deficiency in providing disclosure pursuant to CPLR 3101(d)(1)(i), since that provision does not apply to treating physicians.
Practitioners should note that the testimony will be allowed even if the treating physician had not expressed an opinion regarding causation in a previously-exchanged medical report.
Case: Logan v. Roman, NY Slip Op 00509 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Corporations.
February 12, 2009
February 11, 2009
Sidewalks.
Practice point: Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land.
Practitioners should note, however, that liability may be imposed on the abutting landowner where the landowner either affirmatively created the dangerous condition, voluntarily but negligently made repairs to the sidewalk, created the dangerous condition through a special use of the sidewalk, or violated a statute or ordinance expressly imposing liability on the abutting landowner for a failure to maintain the sidewalk.
Case: James v. Blackmon, NY Slip Op 00507 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
Practitioners should note, however, that liability may be imposed on the abutting landowner where the landowner either affirmatively created the dangerous condition, voluntarily but negligently made repairs to the sidewalk, created the dangerous condition through a special use of the sidewalk, or violated a statute or ordinance expressly imposing liability on the abutting landowner for a failure to maintain the sidewalk.
Case: James v. Blackmon, NY Slip Op 00507 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
February 10, 2009
Adverse possession.
Practice point: To obtain title, a party must prove by clear and convincing evidence the common-law requirements: (1) that the possession was hostile and under claim of right; (2) that it was actual; (3) that it was open and notorious; (4) that it was exclusive; and (5) that it was continuous for the statutory period of 10 years.
Practitioners should note that, when the claim is not founded on a written instrument, the possessor must also establish that the disputed property was either "usually cultivated or improved" or "protected by a substantial inclosure," pursuant to RPAPL 522.
Case: Goldschmidt v. Ford St., LLC, NY Slip Op 00505 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Sidewalks.
Practitioners should note that, when the claim is not founded on a written instrument, the possessor must also establish that the disputed property was either "usually cultivated or improved" or "protected by a substantial inclosure," pursuant to RPAPL 522.
Case: Goldschmidt v. Ford St., LLC, NY Slip Op 00505 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Sidewalks.
February 9, 2009
Emergency vehicles.
Practice point: Emergency vehicle drivers have a qualified privilege to disregard certain traffic laws while on an emergency call, pursuant to Vehicle and Traffic Law § 1104[b][1]-[4]. There is no civil liability to an injured third party unless the officer acted in reckless disregard for the safety of others, pursuant to § 1104[e].
Practitioners should note that this "reckless disregard" standard requires proof that the officer intentionally committed an unreasonable act in disregard of a known or obvious risk so great as to make it highly probable that harm would result.
Case: Corallo v. Martino, NY Slip Op 00496 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Adverse possession.
Practitioners should note that this "reckless disregard" standard requires proof that the officer intentionally committed an unreasonable act in disregard of a known or obvious risk so great as to make it highly probable that harm would result.
Case: Corallo v. Martino, NY Slip Op 00496 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Adverse possession.
February 6, 2009
Corporations.
Practice point: A corporate officer who participates in the commission of a tort may be held individually liable, regardless of whether the officer acted on behalf of the corporation in the course of official duties and regardless of whether the corporate veil is pierced.
Practitioners should note that this "commission of a tort" doctrine permits personal liability to be imposed on a corporate officer for misfeasance or malfeasance, which are affirmative tortious acts. Personal liability cannot be imposed on a corporate officer for nonfeasance, which is a failure to act.
Case: Peguero v. 601 Realty Corp., NY Slip Op 00443 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Emergency vehicles.
Practitioners should note that this "commission of a tort" doctrine permits personal liability to be imposed on a corporate officer for misfeasance or malfeasance, which are affirmative tortious acts. Personal liability cannot be imposed on a corporate officer for nonfeasance, which is a failure to act.
Case: Peguero v. 601 Realty Corp., NY Slip Op 00443 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Emergency vehicles.
February 5, 2009
Evidence.
Practice point: The Supreme Court has broad discretion in determining the materiality and relevance of proffered evidence.
Practitioners should note that the court will decline to admit a copy of an order in underlying litigation as cumulative to testimony already received concerning the outcome of that litigation.
Case: Caplan v. Tofel, NY Slip Op 00323 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Corporations.
Practitioners should note that the court will decline to admit a copy of an order in underlying litigation as cumulative to testimony already received concerning the outcome of that litigation.
Case: Caplan v. Tofel, NY Slip Op 00323 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Corporations.
February 4, 2009
Res ipsa loquitur.
Practice point: The doctrine is appropriate in a medical malpractice case when the injury is unexplained, the injury site is remote from the treatment site and plaintiff was anaesthetized.
Practitioners should note that a plaintiff must show only enough evidence supporting these three conditions to afford a rational basis for concluding that it is more likely than not that the injury was caused by defendant's negligence.
Case: Antoniato v. Long Is. Jewish Med. Ctr., NY Slip Op 00319 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Evidence.
Practitioners should note that a plaintiff must show only enough evidence supporting these three conditions to afford a rational basis for concluding that it is more likely than not that the injury was caused by defendant's negligence.
Case: Antoniato v. Long Is. Jewish Med. Ctr., NY Slip Op 00319 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Evidence.
February 3, 2009
Employment Law.
Practice point: If a collective bargaining agreement specifies a grievance procedure, a covered employee may not sue the employer directly for breach of the agreement but must proceed, through the union, according to the agreement’s terms.
Practitioners should note that this rule equally applies to employees who challenge their termination based on the employer's alleged breach of the collective bargaining agreement.
Case: Ambrosino v. Village of Bronxville, NY Slip Op 00318 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Res ipsa loquitur.
Practitioners should note that this rule equally applies to employees who challenge their termination based on the employer's alleged breach of the collective bargaining agreement.
Case: Ambrosino v. Village of Bronxville, NY Slip Op 00318 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Res ipsa loquitur.
February 2, 2009
Service of process.
Practice point: If served by means other than personal delivery, a person may defend the action within one year after learning of entry of the judgment on a showing that notice of the summons was not personally received in time to defend and that there is a meritorious defense, pursuant to CPLR 317.
Practitioners should note that, absent such a showing, vacating the judgment requires a reasonable excuse for the default and a potentially meritorious defense, pursuant to CPLR 5015(a)(1).
Case: M. R. v. 2526 Valentine LLC, NY Slip Op 00300 (1st Dept. 2009)
The opinion is here.
Tomorrow's issue: Employment Law.
Practitioners should note that, absent such a showing, vacating the judgment requires a reasonable excuse for the default and a potentially meritorious defense, pursuant to CPLR 5015(a)(1).
Case: M. R. v. 2526 Valentine LLC, NY Slip Op 00300 (1st Dept. 2009)
The opinion is here.
Tomorrow's issue: Employment Law.
January 30, 2009
Attorneys' fees.
Practice point: Evidence in the form of detailed monthly invoices, together with affidavits indicating that the invoices were regularly and timely forwarded to and received by defendant, will establish plaintiff's compliance with the retainer agreement's requirement of regular billing.
Practitioners should note that plaintiff's procedural error in submitting an attorney's affirmation in support of its motion, as opposed to the affidavit as required by CPLR 2106, will be cured when the same affirmation is submitted in affidavit form in reply papers.
Case: Berkman Bottger & Rodd, LLP v. Moriarty, NY Slip Op 00311 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Service of process.
Practitioners should note that plaintiff's procedural error in submitting an attorney's affirmation in support of its motion, as opposed to the affidavit as required by CPLR 2106, will be cured when the same affirmation is submitted in affidavit form in reply papers.
Case: Berkman Bottger & Rodd, LLP v. Moriarty, NY Slip Op 00311 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Service of process.
January 29, 2009
Contracts.
Practice point: If there is an enforceable contract, plaintiff has no claim sounding in quantum meruit.
Practitioners should note that the receipt of a benefit, standing alone, is insufficient to show unjust enrichment.
Case: Empire State Fuel Corp. v. Warbasse-Cogeneration Tech. Partnership, L.P., NY Slip 00303 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Attorneys’ fees.
Practitioners should note that the receipt of a benefit, standing alone, is insufficient to show unjust enrichment.
Case: Empire State Fuel Corp. v. Warbasse-Cogeneration Tech. Partnership, L.P., NY Slip 00303 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Attorneys’ fees.
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