School Law.

Practice point: In order to commence a tort action against a school district, a claimant must serve a notice of claim within 90 days of the alleged injury, pursuant to Education Law § 3813[2] and General Municipal Law §§ 50-e[1][a]; 50-i[1].

Practitioners should note that, pursuant to General Municipal Law § 50-e(5), the court may, in its discretion, extend the time to serve a notice of claim.

Case: Grogan v. Seaford Union Free School Dist., NY Slip Op 01197 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Settlement agreements.

Discovery.

Practice point: The assertion of the privilege against self-incrimination is an insufficient basis for precluding discovery.

Practitioners should note that, even if a criminal prosecution is pending, the court is not obligated to stay discovery in a civil matter.

Case: Fortress Credit Opportunities I LP v. Netschi, NY Slip Op 01181 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: School Law.

Labor Law.

Practice point: To establish liability under § 241(6), a plaintiff must demonstrate that defendant's violation of a specific rule or regulation was a proximate cause of the accident.

Practitioners should note that the violation does not establish defendant's liability as a matter of law, but constitutes evidence of negligence and thereby reserves, for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.

Case: Seaman v. Bellmore Fire Dist., NY Slip Op01099 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Discovery

Legal malpractice.

Practice point: To establish a claim to recover damages, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages.

Practitioners should note that attorneys are free to select among reasonable courses of action in prosecuting a client’s case without thereby exposing themselves to liability for malpractice.

Case: Noone v. Stieglitz, NY Slip Op 01093 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Corporations.

Practice point: A party seeking to pierce the corporate veil must establish (1) that the owners exercised complete domination of the corporation in respect to the transaction attacked, and (2) that this domination was used to commit a fraud or wrong resulting in plaintiff's injury.

Practitioners should note that it also must be established that the defendants abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff such that a court of equity should intervene.

Case: Lawlor v. Hoffman, NY Slip Op 01088 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

Family Law.

Practice point: A child's derivative social security benefits may not serve as a credit against a parent’s child support obligation.

Practitioners should note that, although a dependent child's benefits are derived from the disabled parent's past employment, they are only intended to supplement existing resources.

Case: Matter of Jones v. Smith, NY Slip Op 01121 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Corporations.

Employment Law.

Practice point: A probationary employee may be terminated without a hearing and without a statement of reasons, absent a showing that the termination was for a constitutionally impermissible purpose, in bad faith or in violation of statutory or case law.

Practitioners should note that, in challenging the termination, a petitioner has the burden of demonstrating bad faith by competent evidence, not mere speculation.

Case: Matter of Bonanno v. Nassau County Civ. Serv. Commn., NY Slip Op 01114 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Family Law.

Employment Law.

Practice point: No tenured teacher may be disciplined or removed during a term of employment except for just cause, pursuant to Education Law § 3020.

Practitioners should note that the statute is the only means of disciplining a tenured teacher in New York State.

Case: Awaraka v. Board of Educ. of City of New York, NY Slip Op 00682 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Employment Law.

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.