Torts.

Practice point: A threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party.

Students should note that a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.

Bono v. Halben's Tire City, Inc., NY Slip Op 04401 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is orders to show cause.

Foreclosures.

Practice point: In order to commence the action, plaintiff must have a legal or equitable interest in the mortgage.

Students should note that, if plaintiff can establish its status as assignee, the recording of a written assignment after the commencement of the action does not defeat standing.

Aurora Loan Servs., LLC v. Weisblum, NY Slip Op 04184 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is torts.

Notice of claim.

Practice point: The notice must set forth, among other things, the time and place of the accident, and the manner in which it occurred, pursuant to General Municipal Law § 50-e[2].

Students should note that in considering the sufficiency of the notice, the court may look beyond the claim itself to evidence adduced at the § 50-h hearing.

Portillo v. New York City Tr. Auth., NY Slip Op 03974 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is foreclosures.

Notice of a defective or unsafe condition.

Practice point: Defendant's summary judgment motion was granted when the evidence established that the desk drawer had never fallen off before, and there was no suggestion that other desks had defectively secured tracks.

Students should note that the fact that, after the accident, the drawer's track was hanging off does not establish notice, as the track mounting's condition was visible only after the drawer fell.

Fernandez v. City of New York, NY Slip Op 04111 (1st Dept. 2011).

Here is the decision.

Monday's issue is notice of claim.

Summary judgment motions in lieu of complaint.

Practice point: Plaintiff's motion will be granted if it establishes the existence of an agreement that was expressly an independent, absolute and unconditional obligation to pay money only, and by submitting an affidavit of nonpayment, pursuant to CPLR 3213.

Students should note that the motion will be granted even though the obligation was referenced by underlying agreements.

Nordea Bank Finland PLC v. Holten, NY Slip Op 04102 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is notice of a defective or unsafe condition.

Sidewalk defects.

Practice point: Demonstration of prior written notice of the defect is a condition precedent to maintaining an action against the City, pursuant to Administrative Code of City of NY § 7-201[c][2].

Students should note that summary judgment will be denied when there is a dispute as to whether the Big Apple Pothole map portrays the location and nature of the defect so as to bring the condition to the City's attention.

Sondervan v. City of New York, NY Slip Op 04295 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is summary judgment motions in lieu of complaint.

Extreme weather.

Practice point:  Summary judgment is proper where defendant demonstrates, through climatological data and expert opinion, that the conditions would preclude the existence of snow or ice at the time of the accident.

Students should note that, pursuant to CPLR 4528, a record of weather observations taken under the direction of the United States Weather Bureau is prima facie evidence of the facts stated.

Massey v. Newburgh W. Realty, Inc., NY Slip Op 04086 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is sidewalk defects.

Happy Memorial Day.

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

To our Veterans, thank you for your service. If you have a family member in service right now, thank you for your sacrifice.

A safe and happy holiday to all of you.

Tomorrow's issue is extreme weather.

Labor Law.

Practice point: To establish a § 240(1) claim, plaintiff must demonstrate that defendant violated the statute, and that this violation was the proximate cause of his injuries.

Students should note that if plaintiff's actions are the sole proximate cause of his injuries, liability does not attach.

Tomlins v. DiLuna, NY Slip Op 04234 (2d Dept. 2011).

Here is the decision. 

Tuesday's issue is extreme weather.

Medical malpractice.

Practice point: Plaintiff must prove that defendant deviated from accepted community standards of practice, and that this was the proximate cause of the injury.

Students should note that conclusory and unsupported allegations tending to establish the elements will not defeat defendant's summary judgment motion.

Salvia v. St. Catherine of Sienna Med. Ctr., NY Slip Op 04227 (2d Dept. 2011).

Here is the decision. 

Tomorrow's issue is Labor Law.

Summary judgment.

Practice point: To establish that the motion is premature, defendant must offer an evidentiary basis to show that discovery may lead to relevant evidence, and that the facts essential to opposing the motion are exclusively within plaintiff's knowledge and control.

Students should note that mere hope or speculation that such evidence will be uncovered by further discovery is an insufficient basis.

Martinez v. Kreychmar, NY Slip Op 04214 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is medical malpractice.