Family Law.

Practice point: It is fundamental public policy in New York that parents are responsible for their children's support until age 21, pursuant to Family Court Act 413.

Practitioners should note that, under the doctrine of constructive emancipation, a child of employable age who abandons a noncustodial parent by refusing all contact and visitation may forfeit entitlement to support. If the parent causes a breakdown in communication, or has made no serious effort to contact the child and exercise visitation rights, the child will not be deemed to have abandoned the parent.

Case: Matter of Gold v. Fisher, NY Slip Op 00685 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Vehicle and Traffic Law.

Practice point: A motor vehicle licensee must notify the Commissioner within 10 days of a change of residence,pursuant to § 505(5).

Practitioners should note that a party who fails to comply with this provision is estopped from challenging the propriety of service made to the previous address of record.

Case: Walker v. Reyes, NY Slip Op 00678 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Family Law.

Assault.

Practice point: Once intentional offensive contact has been established, the actor is liable for assault and not negligence, since there is no such thing as a negligent assault. There is a one-year statute of limitations, pursuant to CPLR 215[3].

Practitioners should note that plaintiff's argument that defendant used excessive force does not transform the action into one for negligence.

Case: Smiley v. North Gen. Hosp., NY Slip Op 00630 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Vehicle and Traffic Law.

Contracts.

Practice point: To establish the existence of an enforceable agreement, a plaintiff must establish an offer, acceptance, consideration, mutual assent and an intention to be bound, pursuant to 22 NY Jur 2d, Contracts § 9.

Practitioners should note that the requisite meeting of the minds must include agreement on all essential terms.

Case: Kowalchuk v. Stroup, NY Slip Op 01014 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Assault.

Corporations.

Practice point: A corporation continues to exist after dissolution for the winding up of its affairs, and a dissolved corporation may sue or be sued on its obligations, including contractual obligations and contingent claims, until its affairs are fully adjusted.

Practitioners should note that a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified.

Case: Cava Constr. Co., Inc. v. Gealtec Remodeling Corp., NY Slip Op 00324 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Contracts.

Motion practice.

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.

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.

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.

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.

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.

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.