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Today marks the first post on a new blog, GETTING DOWN TO CASES. Characterized as a real people's court, with real disputes and real outcomes, the blog highlights cases with widespread applicability for practioners and laypersons alike.

Instead of offering practice points, GETTING DOWN TO CASES, lays out the facts of the case, specifies the exact nature of the dispute and explains the result.

Every court day, GETTING DOWN TO CASES will highlight a different case than you will find on NEW YORK LAW NOTES.

Thank you for your continued interest and support.

Assumption of the risk.

Practice point: Even if defendant were negligent in hitting a golf ball without knowing where the other players were, or that they were close enough to require a warning, it does not rise to the level of creating a dangerous condition over and above the usual dangers inherent in the sport.

Practitioners should note that a defendant unreasonably increases the inherent risks only where the conduct is without competitive purpose and constitutes a flagrant infraction unrelated to the usual method of play.

Case: Anand v. Kapoor, NY Slip 03110 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Estates Law.

Motion practice.

Practice point: Failure to timely file proof of service is a procedural irregularity which can be cured.

Practitioners should note that, absent an order permitting the late filing of the proof of service, it is a nullity and defendant’s time to answer never begins to run.

Case: Zareef v. Wong, NY Slip Op 02990 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Assumption of the risk.

Notice of Claim.

Practice point: A notice of claim is not required to allege a civil rights violation.

Practitioners should note that, in New York, there is no cause of action for false arrest or false imprisonment sounding in negligence.

Case: Swinton v. City of New York, NY Slip Op 03054 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Labor Law.

Practice point: In a § 240(1) claim, there is summary judgment on liability because the unsecured A-frame ladder was inadequate to prevent plaintiff from falling after receiving an electric shock.

Practitioners should note that the fact that plaintiff had no recollection of falling does not change the result.

Case: Vukovich v. 1345 Fee, LLC, NY Slip Op 03026 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Notice of Claim.

Torts.

Practice point: General Obligations Law § 11-100 provides for a civil recovery against a person who knowingly provides alcohol to a minor, but only for parties injured by the intoxicated minor’s actions.

Practitioners should note that the statute does not provide a right of recovery for a minor’s injuries suffered as a result of the minor’s own intoxication.

Case: Rudden v. Bernstein, NY Slip Op 02983 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Motion practice.

Practice point: CPLR 3216 allows, but does not require, dismissal of an action based on plaintiff's unreasonable neglect to proceed.

Practitioners should note that the statute prohibits dismissal when plaintiff has shown a justifiable excuse for the delay and a meritorious cause of action.

Case: Klein v. MTA Long Is. Bus, NY Slip Op 02974 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Discovery.

Practice point: A municipality may decide which of its employees will appear for deposition, but a plaintiff may demand additional witnesses when (1) the employee already deposed had insufficient knowledge, and (2) there is a substantial likelihood that the person sought has material information which is necessary to prosecuting the case.

Practitioners should note that plaintiff will likely prevail by establishing that the witness he wanted to depose was the investigating officer who signed the injury report and who made the original records that were copied into the report.

Case: Filoramo v. City of New York, NY Slip Op 02969 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: Plaintiff’s motion for disclosure will be denied when defendant demonstrates that the reports sought were prepared in anticipation of litigation, pursuant to CPLR 3101[d][2].

Practitioners should note that movant must make a showing that there is a substantial need of the materials in preparing the case, and that the materials’ substantial equivalent cannot otherwise be obtained without undue hardship.

Case: Lakes v. Lavelle School for the Blind, NY Slip Op 02899 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Discovery.

Motion practice.

Practice point: Pursuant to 22 NYCRR 130-1.1-a(a), an attorney certifies to the accuracy of the contents of litigation papers by signing them.

Practitioners should note that papers are considered frivolous if they assert material statements that are false, pursuant to 22 NYCRR § 130-1.1[c][3]), and frivolous conduct is continued when its lack of factual basis becomes apparent.

Case: Matter of 155 W. 21st St., LLC v. McMullan, NY Slip Op 02884 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: To support a cause of action sounding in age discrimination, a plaintiff must demonstrate (1) membership in a protected class; (2) constructive discharge; (3) qualification to hold the position; and (4) circumstances giving rise to an inference of discrimination.

Practitioners should note that, in order to win on the motion to dismiss, a defendant must demonstrate either that plaintiff cannot establish the elements of intentional discrimination, or that there is no triable issue as to whether defendant’s facially legitimate and nondiscriminatory reasons for the termination were pretextual.

Case: Balsamo v. Savin Corp., NY Slip Op 02737 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.