Motion practice.

Practice point: Proximate cause can be established absent direct evidence, and may be inferred from the facts and circumstances underlying the injury.

Students should note that mere speculation as to the cause of a fall, where there can be many causes, is fatal to the cause of action.

Case: Bosser v. Bay Restoration Corp., NY Slip Op 09878 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Employment Law.

Torts.

Practice point: For summary judgment in a matter alleging design and manufacturing defects, defendant must establish that the product, as designed and manufactured, was reasonably safe.

Students should note that the cause of action based on failure to warn will be dismissed if plaintiff admits that he did not read the instruction manual.

Case: Boyle v. City of New York, NY Slip Op 09565 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: Opinions, even if false or libelous, are constitutionally protected and may not be the subject of private damage actions, if the facts supporting the opinions are set forth.

Students should note that the standard is whether a reasonable reader, aware of the full context and circumstances of the communication, would recognize the allegedly defamatory statements as expressions of opinion.

Case: Kidd v. Epstein, NY Slip Op 09562 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: There is no statutory time limit for a change of venue motion upon dismissal of a party whose residence was the basis for venue, but the motion must be made within a reasonable time.

Students should note that the movant does not have to wait for notice of entry of the order of dismissal.

Case: Moracho v. Open Door Family Med. Ctr., Inc., NY Slip Op 09382 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Torts.

Motion practice.

Practice point: A claim for the imposition of a constructive trust is governed by the six-year statute of limitations, pursuant to CPLR 213(1).

Students should note that the statute begins to run at the time of the wrongful conduct or event giving rise to a duty of restitution.

Case: Klamar v. Marsans, NY Slip Op 09474 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Happy New Year.

Today is a Court holiday, and so there is no post on NEW YORK LAW NOTES.

I hope that you and your family will enjoy a safe and happy holiday weekend, and thank you for support throughout the year just past.

Monday's issue: Motion practice.

Motion practice.

Practice point: A cause of action alleging fraud must be pleaded with specificity, pursuant to CPLR 3016(b).

Students should note that a request for punitive damages is not a separate cause of action.

Case: Brualdi v. Iberia Airlines, NY Slip Op 09464 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Motion practice.

Municipalities Law.

Practice point: A municipality is immune from liability on claims that it negligently designed the sewerage system.

Students should note that a municipality is not an insurer of its sewer system and will be liable only if the injury was caused by active negligence in maintenance.

Case: Azizi v. Villiage of Croton-on-Hudson, NY Slip Op 09461 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A plaintiff may seek a default judgment when defendant has failed to appear, plead or proceed to trial, or when the court orders a dismissal pursuant to CPLR 3215[a].

Students should note that serving a timely notice of claim is a condition precedent for commencing an action against a defendant-municipality, pursuant to General Municipal Law §§ 50-e[1][a], 50-i[1][a].

Case: Goonan v. New York City Trans. Auth., NY Slip 09216 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Municipalities Law.

Motion practice.

Practice point: A settlement agreement terminates the action only if there is an express stipulation of discontinuance, or an entry of judgment in accordance with the settlement terms.

Students should note that, otherwise, the court retains supervisory power, and may act on behalf of the party who is moving to enforce the settlement.

Case: Church Extension Plan v. Harvest Assembly of God, NY Slip Op 09207 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Merry Christmas.

Today is a court holiday, and so there is no post on NEW YORK LAW NOTES.

I hope that you and your family will enjoy a blessed Christmas, and thank you for your support throughout the year.

Monday’s issue: Motion practice.