The Noseworthy doctrine.

Practice point: Having presented medical evidence establishing the loss of memory and its causal relationship to defendant's fault, a plaintiff is entitled to the lesser standard of proof applicable to a party unable to present his version of the facts, pursuant to  Noseworthy v. City of New York, 298 NY 76 [1948].

Student note: In order to avail himself of the doctrine, the plaintiff must present prima facie evidence of defendant’s negligence.

Case: Bah v. Benton, NY Slip Op 00106 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue:  Right-of-way.

Employment law.

Practice point: The New York State Human Rights Law does not immunize disabled employees from discipline or discharge for misconduct in the workplace.

Student note: EEOC Guideline No. 30 specifically provides that an employer may discipline an individual with a disability for violating a workplace conduct standard which is job-related and consistent with business necessity.

Case: Hazen v. Hill Betts & Nash LLP, NY Slip Op 00047 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: The Noseworthy doctrine.

Labor Law.

Practice point: Defendant is not subject to statutory liability if plaintiff simply lost his footing while climbing a properly secured, non-defective extension ladder that did not malfunction.

Student note: Deposition testimony concerning defendant’s policy of using stair towers instead of ladders does not constitute an admission that the ladder was an inappropriate safety device for the work.

Case: Ellerbe v. Port Auth. of N.Y. & N.J., NY Slip Op 00032 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Employment Law.

Court holiday.

The courts are closed today, and so there is no case posted on NEW YORK LAW NOTES.

Tomorrow’s issue: Labor Law.

Jurisdiction.

Practice point: The plaintiff, in opposing a motion to dismiss pursuant to CPLR 3211(a)(8), must make a prima facie showing that the defendant was subject to the court’s personal jurisdiction.

Student note: When opposing on the ground that discovery is necessary, plaintiff need not make a prima facie showing, but must only demonstrate that facts may exist for the court to exercise personal jurisdiction over the defendant.

Case: Daniel B. Katz & Assoc. Corp. v. Midland Rushmore, LLC, NY Slip Op 09584 (2d Dept. 2011).

Here is the decision.

Tuesday’s issue:  Labor Law.

Equitable estoppel.

Practice point: The extraordinary remedy of equitable estoppel may be invoked to bar the affirmative defense of the statute of limitations only where the defendant's affirmative wrongdoing contributed to the delay between accrual of the cause of action and commencement of the legal proceeding.

Student note: The plaintiff must demonstrate reasonable reliance on the defendant's misrepresentations, and the plaintiff's due diligence in ascertaining the facts.

Case: Clark v. Ravikumar, NY Slip Op 09580 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue:  Jurisdiction.

Expert testimony.

Practice point: Expert testimony has been found necessary when it helps to clarify an issue which calls for professional or technical knowledge, possessed by an expert and beyond the understanding of the typical juror.

Student note: The admissibility and scope of expert testimony is a determination within the discretion of the trial court.

Case: Christoforatos v. City of New York, NY Slip Op 09579 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Equitable estoppel.

Ambulance liability.

Practice point: While the operator of an ambulance owes its passengers a duty of reasonable care, that duty does not require that the operator of the vehicle ensure that an adult passenger has fastened his or her seatbelt.

Student note: Tthe New York City Fire Department's internal rules requiring that members ensure that passengers in emergency vehicles wear seatbelts imposes a greater standard of care than that imposed by law, and so a violation of Department rules cannot serve as basis for plaintiff's imposing liability.

Case: Asantewaa v. City of New York, NY Slip Op 09174 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Expert testimony.

The court's granting relief.

Practice point: The court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.

Student note: However, the stability of contract obligations must not be undermined by judicial sympathy with a party.

Case: Emigrant Mtge. Co., Inc. v. Fisher, NY Slip Op 09264 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue:  Ambulance liability.

Legal malpractice.

Practice point: A cause of action alleging legal malpractice may be based upon the creation of a loan document which is usurious and does not fall under any exceptions to the law of usury.

Student note: The action to recover damages arising from legal malpractice must be commenced within three years after accrual, pursuant to CPLR 214[6], and the action accrues when the malpractice is committed.

Case: DeStaso v. Condon Resnick, LLP, NY Slip Op 09259 (2d Dept. 2011).

Here is the decision.

Monday’s issue:  The court’s granting relief.

Attorney's fees.

Practice point: A party must pay his or her own attorney's fee unless an award is authorized by an agreement between the parties, by statute, or by court rule.

Student note: The plaintiff cannot recover an award of an attorney's fee under the New York Civil Rights Law, which does not provide for such relief, pursuant to § 47-b[1]).

Case: Degregorio v. Richmond Italian Pavillion, Inc., NY Slip Op 09258 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Legal malpractice.