Trial practice.

Practice point: The parties may stipulate to the facts to be determined at trial, effectively excluding disputed matters that otherwise would be available to them.

Students should note that the parties stipulated to the only unresolved issues following trial, and since the stipulation did not reach the issue of disgorgement, plaintiff's belated request for that relief was denied.

The case is Dental Health Assoc. v. Zangeneh, NY Slip Op 00484 (2d Dept. 2011).

Here is the decision.

Monday's issue is motion practice.

Labor Law.

Practice point: The fact that an injured plaintiff was the sole witness to the accident does not preclude summary judgment.

Students should note that plaintiff established prima facie entitlement to judgment as a matter of law on the § 240(1) cause of action by submitting an affidavit and deposition testimony demonstrating that the scaffold she was using collapsed, causing her to fall and sustain injuries. 

The case is Campbell v. 111 Chelsea Commerce, L.P., NY Slip Op 00482 (2d Dept. 2011).

Here is the decision. 

Tomorrow's issue is trial practice.

Vehicle and Traffic Law.

 Practice point: A driver with the right-of-way is entitled to anticipate that other drivers will yield as required, pursuant to Vehicle and Traffic Law §§ 1128, 1143.

Students should note, however, that the driver with the right-of-way has the duty to maintain a proper lookout to avoid a collision.

The case is Bonilla v. Calabria, NY Slip Op 00481 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is Labor Law.

Contracts.

Practice point: Standing alone, a contractual obligation does not give rise to tort liability to a third party. 

Students should note, however, that a party contracting to render services may be liable to a third party if it negligently creates or exacerbates a dangerous condition.

The case is Bodenmiller v. Thermo Tech Combustion, Inc., NY Slip Op 00480 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is Vehicle and Traffic Law.

Trial practice.

Practice point: The apportionment of fault among defendants is generally an issue of fact for the jury.

Students should note that the jury's apportionment will not be set aside unless it could not have been reached based upon a fair interpretation of the evidence.

The case is McAleer v. Geraghty, NY Slip Op  00361 (2d Dept. 2011).

Here is the decision.

 Tomorrow’s issue is Contracts.

Labor Law.

Practice point: In order to prevail on a § 240(1) cause of action, plaintiff must establish that the statute was violated and that the violation was a proximate cause of the injury.

Students should note that summary judgment is precluded only if the disputed facts related to material issues.

Case: Leconte v. 80 E. End Owners Corp., NY Slip Op 00359 (2d Dept. 2011)

Here is the decision.

Monday’s issue: Trial practice.

Torts.

Practice point: On a summary judgment motion in a premises liability case, defendant must make a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Students should note that a property owner's duty is to maintain the property in a reasonably safe condition, but not to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous.

Case: Bloomfield v. Jericho Union Free School Dist., NY Slip Op 00341 (2d Dept. 2011)

Here is the decision.

Tomorrow’s issue: Labor Law.

Motion practice.

Practice point: To vacate a default judgment, defendant must demonstrate a reasonable excuse, and a potentially meritorious defense, pursuant to CPLR 5015[a][1].

Students should note that defendant's claim that he does not recall receiving the motion does not overcome the presumption of proper mailing created by the affidavit of service.

Case: Alterbaum v. Shubert Org., Inc., NY Slip Op 00339 (2d Dept. 2011)

Here is the decision.

Tomorrow's issue: Torts.

Torts.

Practice point: An out-of-possession owner has no obligation to perform repairs.

Students should note that if the lease reserves the owner's right to enter to make repairs, there is liability for failing to do so only if the injury-causing defect was a significant structural or design one that was contrary to a specific statutory provision.

Case: Devlin v. Blaggards III Rest. Corp., NY Slip Op 00258 (1st Dept. 2011)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: An action to recover damages arising from an attorney's alleged malpractice must be commenced within three years from accrual.

Students should note that the statute of limitations may be tolled by the doctrine of continuous representation.

Case: Leon Petroleum, LLC v. Carl S. Levine & Assoc., P.C., NY Slip Op 00193 (2d Dept. 2011)

Here is the decision.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: When evidentiary proof is offered on a CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action, the issue is whether plaintiff has a cause of action, not whether the pleading states one.

Students should note that, otherwise, the court must accept the pleaded facts as true, accord plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit any cognizable legal theory.

Case: Holster v. Cohen, NY Slip Op 00187 (2d Dept. 2011)

Here is the decision.

Monday’s issue: Torts.