Court holiday.

The courts are closed today, and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue is dog bites.

Motion practice.

Practice point: While CPLR 5019(a) gives the court discretion to correct a technical defect or a ministerial error, it may not be invoked to alter a party's substantive rights.

Students should note that the provision may not be used to seek modification of a judgment.

The case is Mount Sinai Hosp. v. Country Wide Ins., NY Slip Op 01008 (2d Dept. 2011).

Here is the decision.

Tuesday's issue is dog bites.

Labor Law.

Practice point: On a § 241(6) claim, plaintiff must plead a violation of a specific and applicable provision of the Industrial Code.

Students should note that the provision may be alleged in an amended pleading, even after the note of issue has been filed, if there is a showing of merit, there are no new factual allegations or theories of liability, and there is no prejudice to defendant.

The case is D'Elia v. City of New York, NY Slip Op 00996 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is motion practice.

Notice of claim.

Practice point: Service of a notice of claim within 90 days after accrual is a condition precedent to commencing an action against New York City Health and Hospitals Corporation.

Students should note that attaching a proposed notice to a petition for leave to serve the late notice does not satisfy the condition precedent.

The case is Argudo v. New York City Health & Hosps. Corp., NY Slip Op 00632 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is Labor Law.

Statute of frauds.

Practice point: A promise to answer for another's debt or default must be in writing, and subscribed by the promisor, pursuant to General Obligations Law § 5-701(a)(2).

Students should note that the promise need not be in writing if it is supported by a new and beneficial consideration moving to the promisor, and if the parties intend the promisor to become primarily liable.

The case is Bauccio v. Aon Recovery, Inc., NY Sip Op 00993 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is notice of claim.

Motion practice.

Practice point: The motion court correctly found that the new facts presented by plaintiff were "not very different" from those previously alleged, and, therefore, did not warrant a change in the prior determination, pursuant to CPLR 2221[e][2].

Students should note that New York does not recognize an independent tort cause of action for civil conspiracy.

The case is Montan v. Saint Vincent's Catholic Med. Ctr., NY Slip Op 00619 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is statute of frauds.

Court holiday.

The courts are closed today, and so there is no post on NEW YORK LAW NOTES.

Monday's issue is motion practice.

Motion practice.

Practice point: Plaintiff's expert's affidavit was rejected for non-compliance with the disclosure requirements of CPLR 3101(d)(1)(i) when the expert witness was first identified in opposition to defendant's summary judgment motion, after plaintiff filed the note of issue and certificate of readiness.

Students should note that the affidavit will also be rejected if the expert fails to demonstrate sufficient qualifications to render an opinion.

The case is Pellechia v. Partner Aviation Enters., Inc., NY Slip Op 00496 (2d Dept. 2011).

Here is the decision.

Monday's issue is motion practice.

Landlord-Tenant Law.

Practice point: The Housing Authority does not consider a deceased tenant’s godson an immediate relative who is able to obtain permanent permission to occupy an apartment and succeed to the lease.

Students should note that the Court has consistently enforced the agency's policy requiring a tenant to make a written request to have a relative or other family member become either a legally authorized permanent household member or a co-tenant.

The case is Hawthorne v. New York City Housing Authority, NY Slip Op 00569 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is motion practice.

Torts.

Practice point: Single-family residential property owners are exempt from statutory liability for personal injury caused by the failure to maintain the sidewalk abutting their property in a reasonably safe condition, pursuant to Administrative Code of City of NY § 7-210[b].

Students should note, however, that there may be common-law liability absent a showing that they did not affirmatively cause or create the alleged defect in the sidewalk.

The case is Gilmartin v. City of New York, NY Slip Op 00559 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is Landlord-Tenant Law.

Motion practice.

Practice point: Plaintiff established prima facie entitlement to a default judgment by submitting an affidavit of service, a copy of the verified complaint, and an attorney affirmation attesting to defendant’s default in answering.

Students should note that the motion was defeated by the submission of an affidavit stating that service was made on a non-employee, unauthorized to accept service on defendant's behalf, raising a fact issue as to his apparent authority to accept service.

The case is Miterko v. Peaslee, NY Slip Op 00492 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is Torts.