Practice point: To establish, as a matter of law, that he was free from comparative negligence, plaintiff must state in his initial affidavit that he used reasonable care in entering the crosswalk where the accident happened.
Students should note that plaintiff's failure to make a prima facie showing requires the denial of summary judgment, regardless of the sufficiency of the opposition papers.
Case: Lum v. Wallace, NY Slip Op 01625 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Real Estate Law.
March 8, 2010
March 5, 2010
Labor Law.
Practice point: The collapse of a wall is not the type of elevation-related accident that § 240(1) is intended to guard against.
Students should note that an injury resulting from being struck by an object loosened by vibration is merely a hazard incidental to the workplace.
Case: Kaminski v. 53rd St. and Madison Tower Dev., LLC, NY Slip Op 01532 (1st Dept. 2010)
The opinion is here.
Monday's issue: Torts
Students should note that an injury resulting from being struck by an object loosened by vibration is merely a hazard incidental to the workplace.
Case: Kaminski v. 53rd St. and Madison Tower Dev., LLC, NY Slip Op 01532 (1st Dept. 2010)
The opinion is here.
Monday's issue: Torts
March 4, 2010
Torts.
Practice point: A viable claim against a professional requires a contractual underlying relationship or a relationship that is the functional equivalent of contractual privity.
Students should note that, standing alone, an ethical violation will not create a duty giving rise to a cause of action that would otherwise not exist at law.
Case: Art Capital Group, LLC v. Neuhaus, NY Slip Op 01600 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Labor Law.
Students should note that, standing alone, an ethical violation will not create a duty giving rise to a cause of action that would otherwise not exist at law.
Case: Art Capital Group, LLC v. Neuhaus, NY Slip Op 01600 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Labor Law.
March 3, 2010
Motion practice.
Practice point: When 30 mph winds allegedly caused a piece of plywood to become airborne, the "act of God" affirmative defense will be dismissed since such winds do not constitute an unusual, extraordinary and unprecedented event.
Students should note that defendant's meteorologist's claim of wind gusts over 70 mph is unavailing if it is unsupported by data or methodology.
Case: Verdugo v. Seven Thirty One Ltd. Partnership, NY Slip Op 01595 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Torts.
Students should note that defendant's meteorologist's claim of wind gusts over 70 mph is unavailing if it is unsupported by data or methodology.
Case: Verdugo v. Seven Thirty One Ltd. Partnership, NY Slip Op 01595 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Torts.
Motion practice.
Practice point: When 30 mph winds allegedly caused a piece of plywood to become airborne, the "act of God" affirmative defense will be dismissed since such winds do not constitute an unusual, extraordinary and unprecedented event.
Students should note that defendant's meteorologist's claim of wind gusts over 70 mph is unavailing if it is unsupported by data or methodology.
Case: Verdugo v. Seven Thirty One Ltd. Partnership, NY Slip Op 01595 (1st Dept. 2010)
Tomorrow's issue: Torts.
Students should note that defendant's meteorologist's claim of wind gusts over 70 mph is unavailing if it is unsupported by data or methodology.
Case: Verdugo v. Seven Thirty One Ltd. Partnership, NY Slip Op 01595 (1st Dept. 2010)
Tomorrow's issue: Torts.
March 2, 2010
Remedies.
Practice point: When the remodeling of an apartment was negligently done, the proper measure of damages is the cost to remedy the defect.
Students should note that the fact that defendant did not have a home improvement license is not a bar to recovery.
Case: O'Malley v. Campione, NY Slip Op 01588 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
Students should note that the fact that defendant did not have a home improvement license is not a bar to recovery.
Case: O'Malley v. Campione, NY Slip Op 01588 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Motion practice.
March 1, 2010
Motion practice.
Practice point: Attempted service is defective when the mailing is sent to defendant's workplace in an envelope indicating it is from a law firm.
Students should note that a court may compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay, pursuant to CPLR 3012[d].
Case: Gazes v. Bennett, NY Slip Op 01575 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Remedies.
Students should note that a court may compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay, pursuant to CPLR 3012[d].
Case: Gazes v. Bennett, NY Slip Op 01575 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Remedies.
February 26, 2010
Dog bites.
Practice point: There is strict liability for harm caused by a dog whose owner knew or should have known of the animal's vicious propensities.
Students should note that the owner will establish prima facie a lack of knowledge by demonstrating the dog had never before been aggressive, growled, bared its teeth or bitten anyone.
Case: Levine v. Kadison, NY Slip Op 00819 (2d Dept. 2010)
The opinion is here.
Monday's issue: Motion practice.
Students should note that the owner will establish prima facie a lack of knowledge by demonstrating the dog had never before been aggressive, growled, bared its teeth or bitten anyone.
Case: Levine v. Kadison, NY Slip Op 00819 (2d Dept. 2010)
The opinion is here.
Monday's issue: Motion practice.
February 25, 2010
Employment Law.
Practice point: An employer can unilaterally change an at-will employee's draw against commissions going forward.
Students should note that by continuing the employment the employee accepts the new compensation terms, even without signing the formal notice of them.
Case: Kronick v. L.P. Thebault Co., Inc., NY Slip Op 00816 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Dog bites.
Students should note that by continuing the employment the employee accepts the new compensation terms, even without signing the formal notice of them.
Case: Kronick v. L.P. Thebault Co., Inc., NY Slip Op 00816 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Dog bites.
February 24, 2010
Landlord-Tenant Law.
Practice point: When a tenant does not timely request a temporary restraining order, a court cannot grant a Yellowstone injunction that would toll the running of the cure period.
Students should note that a court cannot reinstate a lease after the lapse of time specified to cure a default.
Case: Korova Milk Bar of White Plains, Inc. v. PRE Props., LLC, NY Slip Op 00815 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Employment Law.
Students should note that a court cannot reinstate a lease after the lapse of time specified to cure a default.
Case: Korova Milk Bar of White Plains, Inc. v. PRE Props., LLC, NY Slip Op 00815 (2d Dept. 2010)
The opinion is here.
Tomorrow's issue: Employment Law.
February 23, 2010
Torts.
Practice point: Awareness of a compressor's internal leak does not raise an issue of fact as to defendant's actual or constructive notice of oil on the floor.
Students should note that, absent a maintenance contract, an independent contractor has no duty to install safety devices or to inspect or warn of alleged defects.
Case: Bevilacqua v. Bloomberg, L.P., NY Slip Op 00728 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Landlord-Tenant Law.
Students should note that, absent a maintenance contract, an independent contractor has no duty to install safety devices or to inspect or warn of alleged defects.
Case: Bevilacqua v. Bloomberg, L.P., NY Slip Op 00728 (1st Dept. 2010)
The opinion is here.
Tomorrow's issue: Landlord-Tenant Law.
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