Court holiday.

Courts are closed today to mark Lincoln's Birthday, and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue: Conversion.

Motions to dismiss.

Practice point: On a motion for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, see CPLR 3026; accept the facts as alleged in the complaint as true; accord the plaintiff the benefit of every possible favorable inference; and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note: Bare legal conclusions asserted in a complaint, however, are not presumed to be true, and whether the plaintiff can ultimately establish the allegations is not a factor.

Case: Knutt v. Metro Intl., S.A., NY Slip Op 00754 (2d Dept. 2012).

Here is the decision. 

Tuesday’s issue: Conversion.

Unlawful retaliation.

Practice point: To make out the claim, an employee-plaintiff must show that he or she has engaged in protected activity; (2) the employer was aware that the employee participated in the activity; (3) the employee suffered an adverse employment action based on the activity; and (4) there is a causal connection between the protected activity and the adverse employment action.

Student note: Once the plaintiff has met this initial burden, the burden shifts to the defendant to present legitimate, independent and nondiscriminatory reasons to support its actions. If the defendant meets this burden, the plaintiff must demonstrate that the reasons put forth by the defendant were merely a pretext.

Case: Delrio v. City of New York, NY Slip Op 00747 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Motions to dismiss.

Judgment as a matter of law.

Practice point: A defendant can establish prima facie entitlement to judgment as a matter of law by showing that the plaintiff cannot identify the cause of the accident.

Student note: A plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the injuries would be based on speculation.

Case: Califano v. Maple Lanes, NY Slip Op 00743 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Unlawful retaliation.

Standing.

Practice point: To have standing in a particular dispute, a plaintiff must demonstrate an injury in fact that falls within the relevant zone of interests sought to be protected by law.

Student note: The holder of a beneficial interest in a corporation’s shares has standing to bring a derivative suit, pursuant to Business Corporation Law § 626.

Case: Bernfeld v. Kurilenko, NY Slip Op 00741 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Judgment as a matter of law.

Contribution.

Practice point: Purely economic loss resulting from a breach of contract does not constitute injury to property within the meaning of CPLR 1401, New York's contribution statute.

Student note: Some form of tort liability is a prerequisite to application of CPLR 1401.

Case: Galvin Bros. v. Town of Babylon, NY Slip Op 00331 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Standing

Summary judgment on a contract.

Practice point: When the parties' intent to be bound by a contractual obligation is determinable by written agreements, the question is one of law, and it can be resolved on a motion for summary judgment.

Student note: A fact question arises as to the parties' intent to enter into an enforceable obligation only where the intent must be determined by disputed evidence or inferences outside the written words of the instrument.

Case: Kaplan v. Roberts, NY Slip Op 00492 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Contribution.

Notice of claim.

Practice point: A plaintiff not asserting a tort claim against the municipality is not required to file a notice.

Student note: General Municipal Law Section 50-e(1)(a) provides that a notice is required "in any case founded upon tort."

Case: Johnson v. City of Peekskill, NY Slip Op 00491 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Summary judgment on a contract.

Assumption of the risk.

Practice point: By engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally, and flow from such participation.

Student note: A participant's consent does not run to concealed or unreasonably increased risks.

Case: Charles v. Uniondale School District Bd of Ed., NY Slip Op 00479 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Notice of claim.

Power of attorney.

Practice point: If a signature on a power of attorney is forged, any document executed by the purported attorney-in-fact pursuant to the power of attorney is void.

Student note:If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing.

Case: ABN AMRO Mtge. Group, Inc. v. Stephens, NY Slip Op 00477 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Assumption of the risk.

Labor Law.

Practice point: When the claim is based on alleged defects or dangers in the methods or materials used to perform the work, a plaintiff may recover against an owner or general contractor under § 200 only on a showing that the defendant had the authority to supervise or control the performance of the work.

Student note: General supervisory authority for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability.

Case: Cabrera v. Revere Condominium, NY Slip Op 00320 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Power of attorney.