Motion practice.

Practice point: A motion for leave to amend a notice of claim will be granted if the error was made in good faith and the municipality has not been prejudiced, pursuant to General Municipal Law § 50-e[6].

Students should note that the fact that, nine months after the accident, plaintiff gave the correct building address in the complaint and bill of particulars does not mitigate the prejudice.

Case: Pelaez v. City of New York, NY Slip Op 09900 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: Medical record statements regarding the way the accident happened are admissible as business records if they were germane to diagnosis or treatment.

Students should note that statements might be admissible as admissions if they are inconsistent with plaintiff’s current account of the accident, and if they are satisfactorily connected to the patient.

Case: Kamolov v. BIA Group, LLC, NY Slip Op 09890 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: A claim of conversion cannot be predicated on a mere breach of contract.

Students should note that a contracting party may be charged with a separate tort liability arising from a breach of a duty distinct from, or in addition to, the breach of contract.

Case: East Ends Labs., Inc. v. Sawaya, NY Slip Op 09885 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: It is axiomatic in New York that where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or for no reason at all.

Students should note that the rule cannot be circumvented by framing the cause of action as tortuous interference with an employment relationship.

Case: Sullivan v. Harnisch, NY Slip Op 09407 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Torts.

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.