Vehicle and Traffic Law.

Practice point: To establish liability pursuant to § 388(1), a plaintiff must show negligence in the use or operation of the vehicle, and that the negligence was a cause of the injury.

Practitioners should note that if intentional offensive contact is established, the actor is liable for battery, not negligence.

Case: Ciminello v. Sullivan, NY Slip Op 06396 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Labor Law.

Practice point: For purposes of § 240(1) liability, an airplane is a structure.

Practitioners should note that the City may be liable as fee owner, even though it leased the premises to the Port Authority, which in turn leased the premises to an airline.

Case: Wong v. City of New York, NY Slip Op 06395 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Vehicle and Traffic Law.

Torts.

Practice point: An arm's length borrower-lender relationship is not confidential or fiduciary in nature, and does not support a cause of action for negligent misrepresentation.

Practitioners should note that liability for negligent misrepresentation will be imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party.

Case: Dobroshi v. Bank of Am., N.A., NY Slip Op 06382 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

Products liability.

Practice point: A manufacturer has a duty to warn against latent dangers resulting from reasonably foreseeable uses of its product.

Practitioners should note that, where a product is manufactured so as to allow its use without a safety feature, a plaintiff may recover for injuries suffered as a result of removing the safety feature.

Case: Stewart v. Honeywell Intl. Inc., NY Slip Op 06365 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Torts.

Practice point: An action to recover for personal injury or wrongful death against a doctor or hospital may be based either on simple negligence principles or on the narrower medical malpractice standard.

Practitioners should note that negligence principles apply where the alleged act may be determined by the fact-trier based on common knowledge. Where the issue involves directions given or treatment administered, consideration must be given to the professional skill and judgment of the practitioner or facility, and medical malpractice principles apply.

Case: Friedmann v. New York Hospital-Cornell Med. Ctr., NY Slip Op 06362 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Products liability.

Contracts.

Practice point: The rule of accord and satisfaction is generally accepted as a legitimate and expeditious means of settling contract disputes.

Practitioners should note that the affirmative defense requires a disputed claim that the parties resolved through a new contract discharging their obligations under the original contract.

Case: Profex, Inc. v. Town of Fishkill, NY Slip Op 06320 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Municipalities Law.

Practice point: Under Highway Law § 139(2), a county may not be subjected to liability for injuries caused by an improperly maintained highway unless (1) it has received prior written notice of the defect, or (2) a statutory exception to the notice requirement applies.

Practitioners should note that, as a matter of law, constructive notice of a defect, except in the case of snow and ice, is an exception to the prior written notice requirement.

Case: Napolitano v. Suffolk County Dept. of Pub. Works, NY Slip Op 06319 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Remedies.

A plaintiff is not precluded from maintaining an action simply because plaintiff received payment from its insurance carrier.

Practitioners should note that plaintiff's receipt of an insurance payment may be relevant as a possible setoff against the damages award, pursuant to CPLR 4545[c].

Case: Hopper v. McCollum, NY Slip Op 06315 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

Motion practice.

Practice point: The filing of a supplemental summons and complaint commences an action against a newly-joined defendant or a third-party defendant, pursuant to CPLR 305[a].

Practitioners should note that a claim asserted against a defendant in an amended filing may relate back to claims previously asserted against a codefendant for statute of limitations purposes where the two defendants are united in interest, pursuant to CPLR 203[c].

Case: Benn v. Losquadro Ice Co., Inc., NY Slip Op 06307 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Remedies.

Municipalities Law.

Practice point: The markings on a Big Apple map must give notice of the particular defect that allegedly caused the injury. Markings showing a sidewalk crack do not give notice of a hole at the end of that crack.

Practitioners should note that, on a motion for summary judgment, where the City establishes that it lacked prior written notice, the burden shifts to plaintiff to demonstrate the applicability of one of two recognized exceptions to the requirement of written notice: (1) that the municipality affirmatively created the defect through an act of negligence, or (2) that a special use resulted in a special benefit to the municipality.

Case: Ortiz v. City of New York, NY Slip Op 06299 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: Where there is an inconsistency between an order and the decision on which it is based, the decision controls.

Practitioners should note that the order is not rendered a nullity by this inconsistency unless it affects a substantial right of a party, pursuant to CPLR 5019[a].

Case: Matter of Stewart, NY Slip Op 06254 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.