Fee disputes.

Practice point: Part 137 does not apply to fee disputes involving sums of more than $50,000, absent the consent of the parties, pursuant to 22 NYCRR 137.1[b][2].

Student note: To the extent the client challenged the quality of the legal services provided, his contentions were unavailing, because he failed to raise them at the inquest deciding the reasonable value of the legal services provided.

Case: Yahudaii v. Baroukhian, NY Slip Op 08284 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue:  Landowner’s liability.

Legal malpractice.

Practice point: Plaintiffs were not required to allege the specific scope of defendants' duties, given the absence of a governing retainer agreement.

Student note:  Plaintiffs' expert affidavit was properly considered to remedy any defects in the complaint.

Case: Fitzsimmons v. Pryor Cashman LLP, NY Slip Op 08280 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue:  Fee disputes.

Late notice of claim.

Practice point: In exercising its discretion to grant leave to serve the late notice, a court must consider whether (1) the claimant has demonstrated a reasonable excuse for failing to serve timely; (2) the claimant was an infant, or mentally or physically incapacitated; (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter; and (4) the delay would substantially prejudice the public corporation in defending on the merits, pursuant to General Municipal Law § 50-e[5].

Student note: The factor of the petitioner’s infancy, standing alone, does not compel the granting of a petition for leave to serve a late notice.

Case: Matter of Magana v. Westchester County Health Care Corp., NY Slip Op 08155 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Legal malpractice.

Labor Law.

Practice point: For § 241(6) purposes, a temporary loading dock is a platform under Industrial Code § 23-1.22(c)(2), and not a scaffold.

Student note: An expert's opinion will be disregarded where no authority, treatise, standard, building code, article or other corroborating evidence is cited to support the assertion concerning an alleged deviation from good and accepted industry custom and practice.

Case: Cassidy v. Highrise Hoisting & Scaffolding, Inc., NY Slip Op 07936 (1st Dept. 2011).

Here is the decision.

Monday’s issue: Late notice of claim.

A binding signature.

Practice point: A person who signs an agreement without having read it is nonetheless bound by its terms.

Student note: A signer's duty to read and understand that which it signed is not diminished merely because he was provided with only a signature page.

Case: Vulcan Power Co. v. Munson, NY Slip Op 07917 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Labor Law.

Title to a motor vehicle.

Practice point: Title is transferred when the parties intend the transfer to occur.

Student note: Therefore, title may pass to a purchaser on delivery of the vehicle, notwithstanding that formal registration of the vehicle in the purchaser's name occurs later.

Case: Godfrey v. G.E. Capital Auto Lease, Inc., NY Slip Op 07903 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: A binding signature.

Vacating a default.

Practice point: To vacate a default in opposing defendant’s summary judgment motion, plaintiff is required to demonstrate a reasonable excuse for not opposing the motion and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1].

Student note: Plaintiff’s excuse of law office failure will be rejected if the record shows that the alleged mistake was not isolated, but rather part of a pattern of willful delay and default.

Case: Thapt v. Luthern Med. Ctr., NY Slip Op 08141 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Title to a motor vehicle.

The relation-back doctrine.

Practice point: The doctrine, which is codified in CPLR 203(b), allows a claim asserted against a defendant in an amended complaint to relate back to claims previously asserted against a codefendant for statute of limitations purposes if the two defendants are united in interest.

Student note:  The plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new defendant knew or should have known that, but for  plaintiff's mistake as to the identity of the proper parties, the action would have been brought against him or her as well.

Case: Stevens v. Winthrop S. Nassau Univ. Health Sys., Inc., NY Slip Op 08140 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Vacating a default.

Pre-employment checks.

Practice point: To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, plaintiff must show that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.

Student note:  There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.

Case: Shor v. Touch-N-Go Farms, Inc., NY Slip Op 08138 (2d Dept. 2011).

Here is the decision.

Monday’s issue:  The relation-back doctrine.

Happy Thanksgiving.

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

Tomorrow’s issue is pre-employment checks.

A property owner's duty to protect.

Practice point: Although a property owner must act in a reasonable manner to prevent harm to those on its premises, the duty to control the conduct of persons on its premises arises only when the owner can control such conduct, and is reasonably aware of the need for that control.

Student note:  The owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.

Case: Kiely v. Benini, NY Slip Op 08126 (2d Dept. 2011).

Here is the decision.

Friday’s issue: Pre-employment checks.