Motion practice.

Practice point: Absent evidence that defendant willfully and contumaciously failed to appear for deposition, the court will not strike the answer.

Students should note that the appropriate remedy is to preclude defendant from offering any testimony at trial.

Case: Cobenas v. Ginsburg Dev. Cos., LLC, NY Slip Op 05718 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Torts.

Practice point: The doctrine of primary assumption of the risk includes those risks associated with the construction of the playing surface, and any open and obvious condition on it.

Students should note that the mere fact that defendant could have provided safer conditions is beside the point where the risk is open and obvious.

Case: Bendig v. Bethpage Union Free School Dist., NY Slip Op 05715 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Motion practice.

Practice point: In deciding a motion, the court may search the record and award summary judgment to a nonmoving party, pursuant to CPLR 3212(b).

Students should note that, in the interest of justice, a court may consider newly submitted evidence in a motion to renew, even if it was available in the prior motion.

Case: Atiencia v. Mbbco Ii, LLC, NY Slip Op 05872 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Contracts.

Practice point: Where the language is not clear enough to enforce an obligation to indemnify, the court will not rewrite the contract to supply an obligation the parties themselves did not specify.

Students should note that attorney's fees are incidents of litigation, and a prevailing party may not collect except by express agreement, statute or court rule.

Case: Adesso Café Bar & Grill, Inc. v. Burton, NY Slip Op 05710 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Employment Law.

Practice point: Workers' compensation is the exclusive remedy for damages resulting from an injury arising out of and in the course of employment.

Students should note that if the injured worker elects to receive Workers' Compensation benefits from the general employer, there is no action at law against a special employer, pursuant to Workers' Compensation Law § 29[6].

Case: Franco v. Kaled Mgt. Corp., NY Slip Op 05512 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Contracts.

Happy Holiday.

The courts are closed today, and so there is no post.

Best wishes for a safe and happy Independence Day.

Special thanks to the men and women whose service and sacrifice has helped to keep us free.

Corporations.

Practice point: A partnership is an association of two or more persons to carry on as co-owners a business for profit, pursuant toPartnership Law § 10[1].

Students should note that if there is no written agreement between the parties, the court will decide whether there is a partnership based on the conduct, intention, and relationship between the parties.

Case: Czernicki v. Lawniczak, NY Slip Op 05503 (2d Dept. 2010)

Here is the opinion.

Tuesday's issue: Employment Law.

Labor Law.

Practice point: Section 200 codifies an owner or contractor's common-law duty to maintain a safe construction site.

Students should note that if plaintiff was injured as the result of an allegedly dangerous condition at the work site, liability may attach if defendant had control over the work site and either created or had actual or constructive notice of the dangerous condition.

Case: Bruno v. Board of Educ. of Cent. School Dist. #5, NY Slip Op 05498 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Corporations.

Labor Law.

Practice point: Section 200 codifies an owner or contractor's common-law duty to maintain a safe construction site.

Students should note that if plaintiff was injured as the result of an allegedly dangerous condition at the work site, liability may attach if defendant had control over the work site and either created or had actual or constructive notice of the dangerous condition.

Case: Bruno v. Board of Educ. of Cent. School Dist. #5, NY Slip Op 05498 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Corporations.

Labor Law.

Practice point: Section 200 codifies an owner or contractor's common-law duty to maintain a safe construction site.

Students should note that if plaintiff was injured as the result of an allegedly dangerous condition at the work site, liability may attach if defendant had control over the work site and either created or had actual or constructive notice of the dangerous condition.

Case: Bruno v. Board of Educ. of Cent. School Dist. #5, NY Slip Op 05948 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Corporations.

Legal malpractice.

Practice point: A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement was effectively compelled by counsel's mistakes.

Students should note if plaintiff's claim of breach of fiduciary duty is essentially a claim of malpractice, it is governed by the malpractice standard, namely, that, but for counsel's action, plaintiff would have prevailed in the underlying action.

Case: Boone v. Bender, NY Slip Op 05497 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Labor Law.