Assumption of the risk.

Practice point: While generally the risk is not assumed until play has begun, it is not always necessary for the game to have been formally underway.

Practitioners should note that there is no owner liability where an injury results directly from the course of action plaintiff decided to pursue.

Case: Marino v. Bingler, NY Slip Op 01623 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Medical malpractice.

Attorneys' fees.

Practice point: In a domestic relations matter, an attorney may not contract for, charge or collect a fee which is contingent on securing a divorce or which in any way is determined by reference to the amount of maintenance, support, equitable distribution or property settlement.

Practitioners should note that, as a matter of public policy, courts give particular scrutiny to attorney-client fee arrangements, and the attorney has the burden to show that the fee agreement is fair, reasonable and fully understood by the client.

Case: Law Off. of Howard M. File, Esq., P.C. v, Ostashko, NY Slip Op 01622 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Assumption of the risk.

Motion practice.

Practice point: A motion to dismiss will be granted, pursuant to
22 NYCRR 202.27(b), when plaintiff fails to provide a reasonable excuse for failing to appear on the trial start date, when the parties had stipulated to the date and to no further adjournments.

Practitioners should note the insufficiency of the excuse that, for the week set for trial, plaintiff was unable to get off work, when plaintiff was able to get time off to attend a family event. Aggravating factors might include the lengthy history of the case, including several prior motions to restore.

Case: Harris v. Bliss, NY Slip Op 01594 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Attorneys’ fees.

Motion practice.

Practice point: A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law, pursuant to CPLR 2221[e][2].

Practitioners should note that, absent circumstances set forth in CPLR 5015, the motion must be made prior to the entry of a final judgment or before the time to appeal has expired.

Case: Dinallo v. DAL Elec., NY Slip Op 01607 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A defendant waives late service by accepting and retaining the complaint, without objection, and serving an answer with a demand for a bill of particulars and a demand for discovery and inspection, before moving to dismiss pursuant to CPLR 3012(b).

Practitioners should note that no appeal lies from an order denying a motion for leave to reargue.

Case: Betancourt v. Delta Airlines, Inc., NY Slip Op 01600 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Labor Law.

Practice point: Owners of one- and two-family homes who do not direct or control the work are statutorily exempt from liability under § 240, which otherwise imposes a nondelegable duty to provide scaffolding and other protection to persons working in construction, excavation, or demolition.

Practitioners should note that the homeowner's exemption does not apply where the construction is effectively a commercial enterprise, such as building a new home for sale.

Case: Andreas v. Catskill Mtn. Lodging, LLC, NY Slip Op 01597 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Withdrawing as counsel.

Practice point: When an attorney terminates representation and there has been no misconduct, no discharge for just cause and no unjustified abandonment, the attorney preserves the right to enforce a statutory charging lien.

Practitioners should note that if the attorney’s moving papers do not specify the ground for the relief sought, an evidentiary hearing must be held to determine whether the attorney withdrew with just cause.

Case: Ramirez v. Willow Ridge Country Club, Inc., NY Slip Op 01525 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Sealed records.

Practice point: The statutory protection of records which would otherwise be kept sealed, pursuant to Criminal Procedure Law
§ 160.50, is waived by a party who affirmatively puts the underlying conduct at issue in a civil suit.

Practitioners should note that the statutory privilege may not be used to gain an advantage in a civil action allgeging malicious prosecution based on the underlying criminal proceeding.

Case: Best v. 2170 5th Ave. Corp., NY Slip Op 01524 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Withdrawing as counsel.

Spoilation.

Practice point: A party's pleading may be struck as a sanction for the intentional destruction of key evidence.

Practitioners should note that if the destroyed evidence is not crucial to plaintiff's case, a lesser sanction is appropriate, at the discretion of the court.

Case: Kugel v. City of New York, NY Slip Op 01521 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Sealed records.

Dog bites.

Practice point: To recover in strict liability, a plaintiff must prove that the dog had vicious propensities and that the owner knew or should have known of them.

Practitioners should note that a "Beware of Dog" sign does not raise an issue of fact absent evidence that, prior to the incident, the dog exhibited any vicious tendencies.

Case: Palumbo v. Nikirk, NY Slip Op 01454 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Spoilation.

Personal jurisdiction.

Practice point: New York courts may exercise jurisdiction over a defendant who transacts business in New York or who contracts anywhere to supply goods or services here, pursuant to CPLR 302[a][1]), even where defendant has never physically entered the state, so long as defendant's New York activities were purposeful and there is a substantial relationship between those activities and plaintiff’s claim.

Practitioners should note that exercising jurisdiction must not be inconsistent with traditional notions of due process, fair play, and substantial justice, pursuant to International Shoe.

Case: Bogal v. Finger, NY Slip Op 01435 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Dog bites.