Tolling the statute.

Practice point: CPLR 204(a) tolls the one-year and 90-day statute of limitations on tort claims against municipal defendants while a motion to serve a late notice of claim is pending. 

Student note: Since plaintiffs were effectively prohibited from properly commencing their action when their initial application for leave to serve the late notice was pending, as well as when their second application for similar relief was pending, they were entitled to a toll for both periods.

Case: Ambrus v. City of New York, NY Slip Op 05945 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue: Yellowstone injunctions.

Downhill snowboarding.

Practice point: Plaintiff's injury, caused by hitting a stump, while swerving to avoid another person on the trail, is one of the risks inherent in downhill snowboarding.

Student note: By engaging in the recreational sport of snowboarding, plaintiff consented to those risks which are inherent in and arise out of the nature of the sport, and which flow from plaintiff's participation.

Case: Bedder v Windham Mtn. Partners, LLC, NY Slip Op 05861 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue: Tolling the statute.

Orders granted on default.

Practice point: No appeal lies from the order, pursuant to CPLR 5511.

Student note: Defendant's remedy is a motion to vacate, pursuant to CPLR 5015[a][1].

Case: Baez-Ferreira v. Marte, NY Slip Op 05869 (1st Dept. 2011).

Here is the decision.

Monday's issue: Downhill snowboarding.

Liability on a contract.

Practice point: Officers and agents of a company are not personally liable unless they purport to bind themselves individually.

Student note: While privity is not required for an unjust enrichment claim, there must be a connection between the parties that could have caused plaintiff's reliance or inducement.

Case: Georgia Malone & Co., Inc. v. Rieder, NY Slip 05856 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue: Orders granted on default.

Substitute teachers and tenure.

Practice point: A substitute teacher may not accumulate tenure credit while teaching pursuant to an intern certificate.

Student note:  Prior to receiving tenure, eligible educators must serve a probationary period of up to three years, pursuant to  Education Law § 3014[1].

Case: Matter of Berrios v. Board of Educ. of Yonkers City School Dist., NY Slip Op 05804 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue: Liability on a contract.

Affidavits.

Practice point: The affidavit may be offered to remedy a pleading defect, but it is not necessary as evidentiary support for a properly pleaded claim.

Student note: Dismissal is warranted only if either party's affidavit establishes that plaintiff has no cause of action.

Case: Bodden v. Kean, NY Slip Op 05794 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue: Substitute teachers and tenure.

A school's duty of care.

Practice point: The duty is to exercise the same degree of care toward its students as would a reasonably prudent parent.

Student note: The school is not an insurer of its students' safety, and it will be held liable only for foreseeable injuries proximately related to alleged inadequate supervision.

Case: Rodriguez v. Riverhead Cent. School District, NY Slip Op 05686 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue: Affidavits.

Separation agreements.

Practice point: Agreements which are fair on their face will be enforced according to their terms unless there is proof of fraud, duress, overreaching, or unconscionability.

Student note: Because of the fiduciary relationship between spouses, courts will scrutinize separation agreements more carefully than they will ordinary contracts.

Kabir v. Kabir, NY Slip Op 05672 (2d Dept. 2011).

Here is the decision.

Monday's issue: A school's duty of care.

Attorney malpractice.

Practice point: Ordinarily, privity of contract is necessary to state the cause of action..

Student note: There is a narrow exception where there is fraud, collusion, or malicious acts. 

Ginsburg Dev. Cos., LLC v Carbone, NY Slip Op 05664 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is separation agreements.

Examinations before trial.

Practice point: No appeal as of right lies from an order determining an application to review rulings made at an examination before trial.

Student note: Similarly, the denial of a protective order preventing the further examination of a witness is not appealable as of right, since that is in the nature of an order on application to review objections raised at an examination before trial.

Braverman v. Bendiner & Schlesinger, Inc., NY Slip Op 05645 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is attorney malpractice.

Notice of claim.

Practice point:  The notice is not a condition precedent to a cause of action, asserted pursuant to 42 USC § 1983, which seeks to recover damages premised on violations of federal civil or constitutional rights under color of state law.

Students should note that timely service of the notice is a condition precedent to a lawsuit sounding in tort and commenced against a municipality.

Rowe v. NYCPD, NY Slip Op 05477 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is examinations before trial.