Statute of limitations.

Practice point: Generally, a cause of action alleging medical malpractice accrues on the date of the alleged wrongful act or omission, and the statute of limitations begins running on that date.

Students should note that when the patient is undergoing a continuous course of treatment for the same condition or complaint that gives rise to the lawsuit, the statute of limitations will not begin to run until the end of the course of treatment.

The case is Udell v. Naghavi, NY Slip Op 01997 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is real estate contracts.

Labor Law.

Practice point: A construction manager is generally not considered a contractor responsible for worker safety, pursuant to §§ 200 and 241(6). However, he may become responsible if he has been delegated the authority and duties of a general contractor, or if he functions as an agent of the property owner.

Students should note that a party is deemed to be an agent of an owner or general contractor when it has supervisory control and authority over the work being done.

The case is Rodriguez v. JMB Architecture, LLC, NY Slip Op 01990 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is statute of limitations.

Labor Law.

Practice point:  Because defendant-general contractor admitted that there was no place to which a harness could have been tied, defendants did not raise the inference that plaintiff's failure to use a safety harness was the sole proximate cause of his injury.

Students should note that the affirmation of defendants' attorney, asserting that there were places to which a safety harness could have been tied, carries no evidentiary weight.

The case is Berrios v. 735 Ave. of the Ams., LLC, NY Slip Op 01940 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is Labor Law.

Summary judgment.

Practice point: The dismissal of an action by summary judgment constitutes a determination on the merits.

Students should note that the doctrine of law of the case precludes the amending of plaintiff's reply, since the events underlying the proposed affirmative defense of fraud are the same as those which formed the basis for her legal malpractice claim.

The case is Callaghan v. Curtis, NY Slip Op 01785 (2d Dept. 2011).

Here is the decision.

Monday's issue is Labor Law.

Family Law.

Practice point: In a matrimonial action, a postjudgment motion is not the proper vehicle for challenging the propriety of child support provisions in a stipulation of settlement incorporated but not merged into a judgment of divorce.

Students should note that the challenge must be made by the commencement of a separate plenary action to set aside the stipulation.

The case is Brody v. Brody, NY Slip Op 01782 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is summary judgment.

Settlements.

Practice point: A stipulation of settlement is a contract, enforceable according to its terms.

Students should note that, when a court enforces the stipulation, it must effectuate the parties' intent. As with any contract, where the terms are unambiguous, plain meaning controls.

The case is Alshawhati v. Zandani, NY Slip Op 01777 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is Family Law.

Venue.

Practice point: The motion to change venue was granted when none of the parties resided in the county at the time the action was commenced, pursuant to CPLR 503[a], and the summons did not state the basis for placing venue in the county.

Students should note that a demand to change venue based on the designation of an improper county, pursuant to CPLR 510[1], must be served with the answer or before the answer is served, pursuant to CPLR 511[a].

The case is Accardi v. Kaufmann, NY Slip Op 01775 (2d Dept. 2011).

Here is the decision.

Tomorrows issue is settlements.

Labor Law.

Practice point: Pursuant to § 241(6), property owners and contractors engaged in construction, excavation, and demolition must ensure that the work is conducted so as to provide reasonable and adequate protection and safety to persons employed therein.

Students should note that the statutory obligation is non-delegable.

The case is Reyes v. Arco Wentworth Mgt. Corp., NY Slip Op 01988 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue is venue.

Preclusion orders.

Practice point: A defendant's preclusion from introducing evidence at trial does not automatically entitle plaintiff to summary judgment.

Students should note that a preclusion order is unlike the striking of an answer, which effectively resolves a claim against the non-disclosing defendant.

The case is Mendoza v. Highpoint Assoc., IX, LLC, NY Slip Op 01719 (1st Dept. 2011).

Here is the decision.

Monday's issue is Labor Law.

Landlord-Tenant Law.

Practice point: There is no right to succeed to an apartment, absent a showing that the unit was petitioner's primary residence for the required time period.

Students should note that, although petitioner offered evidence that he lived in the apartment, he did not offer evidence in proper form, such as a notice of change or income affidavits,

establishing that he lived there for two years prior to the tenant of record's death.

The case is Matter of Cognata v. New York State Div. of Hous. & Community Renewal, NY Slip Op 01709 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is preclusion orders.

Dog bites.

Practice point: Defendant-landlord established prima facie that it neither knew nor had reason to know that tenant's dog had vicious propensities. Although the building superintendent testified that other tenants were afraid of the pit bull, he also said that he had never received any complaints about the animal or saw it acting aggressively. He noted that, when he encountered the dog in the hallway, the dog passed him "at ease." 

Students should note that plaintiff's testimony that, on the day before the attack, the dog had growled at him does not support the inference that defendant knew or should have known of the dog's vicious propensities. Nor is it significant that the tenant allegedly tied the dog when it was in the apartment, absent evidence that he did so because he feared that the dog would attack a visitor.

The case is Orozco v. 725 S. Blvd., LLC, NY Slip Op 01706 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is Landlord-Tenant Law.