Labor Law.

Practice point: Performing construction work for purposes of § 240(1) and working at a construction site for purposes of § 241(6) are distinguished from fabricating and transporting materials to be used in ongoing work at the construction site. 

Student note: Dispositive for dismissal was the fact that, at the time of his injury, plaintiff was engaged in the fabrication and loading of steel at his employer's Bronx facility, not in performing construction work at the construction site in Queens.

Case: Flores v. ERC Holding LLC, NY Slip Op 06187 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue: Setting aside a jury verdict.

Administrative hearings.

Practice point: The standard of judicial review is whether the determination was supported by substantial evidence.

Student note: Where the evidence is conflicting and there is room for choice, a reviewing court may not weigh the evidence or reject the agency's choice.

Case: Matter of Martin v. Board of Trustees of the Vil. of Pelham Manor, NY Slip OP 06106 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Labor Law.

Informed consent.

Practice point: Plaintiff must prove that no reasonable person, if fully informed, would consent to the treatment, and that the treatment proximately caused the injury.

Student note: Pursuant to CPLR 4401-a, a prima facie claim requires expert testimony establishing that the disclosed information about the procedure's inherent risks was qualitatively insufficient. 

Case: Evart v. Park Ave. Chiropractics, P.C., NY Slip Op 05878 (1st Dept. 2011).

Here is the decision.

Monday's issue: Administrative hearings.

Personal injury.

Practice point: Defendant is entitled to summary judgment as a matter of law when plaintiff cannot identify the defect that caused the injury.

Student note: It was not enough when, at his deposition, decedent-plaintiff' had circled the defect in the photograph based on his recognition of the approximate location where he fell — not his recognition of the defect itself.

Case: Siegel v. City of New York, NY Slip Op 05937 (1st Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Informed consent.

Medical malpractice.

Practice point: If the matter is not within the ordinary juror's experience, expert testimony is needed to prove a deviation from the accepted standard of medical care and proximate cause.

Student note: When that expert testimony is precluded, plaintiff cannot make out a prima facie case, and the complaint will be dismissed.

Case: Sushchenko v. Dyker Emergency Physicians Serv., P.C., NY Slip Op 06101 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Personal injury.

90-day demands.

Practice point: On receipt of a 90-day demand, pursuant to CPLR 3216, plaintiff must serve and file a timely note of issue, or move, before the default date, to vacate the demand or to extend the time, pursuant to CPLR 2004.

Student note: Otherwise, plaintiff must demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action to avoid dismissal, pursuant to CPLR 3216[e].

Case Gagnon v. Campbell, NY Slip Op 06092 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Medical malpractice.

Architect malpractice.

Practice point: There is a three-year statute of limitations, pursuant to CPLR 214(6).

Student note: The cause of action accrues on completion of the work and the subsequent termination of the professional relationship.

Case: Vlahakis v. Belcom Dev., LLC, NY Slip Op 05957 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: 90-day demands.

Prima facie tort.

Practice point: The elements are: (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful.

Student note: The claim does not lie where defendant's action has any motive other than a desire to injure the plaintiff.

Case: Smith v. Meridian Tech, Inc., NY Slip Op 05954 (2d Dept. 2011).

Here is the decision.

Listen here.

Monday's issue: Architect malpractice.

Adverse possession

Practice point: Claimant must prove that possession of the property was: (1) hostile and under a claim of right; (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period.

Student note: Pursuant to RPAPL 501(3), "[a] claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be."

Case: Hogan v. Kelly, NY Slip Op 06018 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Prima facie tort.

Motions to dismiss.

Practice point: Pursuant to CPLR 3211(a)(1), the motion may be granted only where the movant offers documentary evidence which utterly refutes plaintiff's allegations, and conclusively establishes a defense as a matter of law.

Student note: In considering the motion, pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged as true, give plaintiff the benefit of every possible inference, and determine only whether the alleged facts fit within any cognizable legal theory.

Case: Cog-Net Bldg. Corp. v. Travelers Indem. Co., NY Slip Op 06014 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Adverse possession.

Labor Law.

Practice point: There is no § 240(1) liability when safety devices were readily available at the work site and plaintiff knew he was expected to use them but, without good reason, did not.

Student note: There may be § 240(2) liability when a worker is injured due to an elevation-related hazard.

Case: Pietrowski v. Are-East Riv. Science Park, LLC, NY Slip Op 05977 (1st Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Motions to dismiss.