Bills of particulars.

Practice point: The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial.

Student note: Pursuant to CPLR 3043(b), a party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities, provided  that no new cause of action may be alleged or new injury claimed.

Case: Jurado v. Kalache, NY Slip Op 02083 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Slips and falls.

Workers' Compensation.

Practice point: This is the exclusive remedy when the hospital’s employee-plaintiff was injured when she tripped on a sidewalk adjacent to the emergency room, on her way back from the hospital’s human resources department to her own office, during working hours.

Student note: Even if the trip to human resources were purely personal, plaintiff was returning to her office for the purpose of resuming work, and was injured on property which her employer was responsible to maintain.

Case: Patricka v. City of New York, NY Slip Op 02163 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Bills of particulars.

Indemnification.

Practice point: A party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified.

Student note: If there are no fact issues regarding the indemnitee's active negligence, the court may render a conditional judgment on the issue of indemnity, pending determination of the primary action, in order that the indemnitee may obtain the earliest possible determination as to the extent of reimbursement.

Case: Rodriguez v. Tribeca 105, LLC, NY Slip Op 01667 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Workers’ Compensation.

Qualified privilege.

Practice point: The defense is available on a defamation claim if the communications were made to persons who had some common interest in the subject matter.

Student note: The defense will be defeated by demonstrating that the defendant spoke with malice.

Case: Constantine v. Teachers Coll., NY Slip Op 01782 (1st Dept. 2012).

 Here is the decision.

Tomorrow’s issue: Indemnification.

Account stated.

Practice point: Plaintiff-law firm established entitlement to summary judgment by showing that its client received, retained without objection, and partially paid invoices without protest.

Student note: A prior order fixing the amount of plaintiff's charging lien on the proceeds of the settlement of the underlying lawsuit is not res judicata as to plaintiff's account stated claim if plaintiff did not have an opportunity to litigate that claim when the court awarded the charging lien.

Case: Scheichet & Davis, P.C. v. Nohavicka, NY Slip Op 01763 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Qualified privilege.

Bankruptcy petitions.

Practice point: The failure to schedule a legal claim as an asset in a bankruptcy proceeding deprives the debtor of standing to raise it in a subsequent legal action.

Student note: Neither ignorance of the law nor inadvertent mistake excuses a plaintiff's failure to list such a claim as a potential asset in the petition.

Case: Hutchinson v. Chana Weller, DDS, PLLC, NY Slip Op 01875 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Account stated.

Vehicle owner's liability.

Practice point:  Vehicle and Traffic Law § 388(1) provides that, with the exception of bona fide commercial lessors of motor vehicles, which are exempt from vicarious liability by virtue of federal law, pursuant to 49 USC § 30106, the owner of a motor vehicle is liable for the negligence of one who operates the vehicle with the owner's express or implied consent.

Student note: This statute creates a presumption that the driver was using the vehicle with the owner's express or implied permission, which only may be rebutted by substantial evidence sufficient to show that the vehicle was not operated with the owner's consent. Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use.

Case: Vyrtle Trucking Corp. v. Browne, NY Slip Op 01811 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Bankruptcy petitions.

Defaults.

Practice point: Under CPLR 5015(a)(4), a default must be vacated once a movant demonstrates lack of personal jurisdiction.

Student note: A party who moves to vacate a judgment entered on default is relieved of any obligation to demonstrate a reasonable excuse for the default and a potentially meritorious defense when lack of personal jurisdiction is asserted as the ground for vacatur.

Case: Toyota Motor Credit Corp. v. Lam, NY Slip Op 01809 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Vehicle owner’s liability.

Tenants-in-common.

Practice point: The presumption that tenants-in-common share equally in their common tenancy may be rebutted if the facts show that they hold the tenancy in unequal shares. A court acting in equity may take into account the amounts invested in the property by the respective tenants in determining the shares to which they are entitled.

Student note: In making this determination, the court must consider the various equities, including the nature of the parties' relationship, and whether any or all of these contributions were repaid or intended to be a gift.

Case: McGuire v. McGuire, NY Slip Op 01802 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Defaults.

Adverse possession.

Practice point: A party seeking to obtain title must prove by clear and convincing evidence the following common-law requirements: that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4) it was exclusive; and (5) it was continuous for the statutory period of 10 years.

Student note: Hostile possession does not require a showing of enmity or specific acts of hostility. All that is required is a showing that the possession constitutes an actual invasion of or infringement upon the owner's rights. Consequently, hostility may be found even though the possession occurred inadvertently or by mistake.

Case: Kelly v. Bastianic, NY Slip Op 01798 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Tenants-in-common.

Collateral estoppel.

Practice point: The doctrine bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues raised in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling.

Student note: A decision upon which no formal order or judgment has been entered lacks the conclusive character necessary to invoke the doctrine.

Case: Egbert Sq. Realty, LLC v. 112-114 Corp., NY Slip Op 01794 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Adverse possession.