The storm-in-progress rule.

Practice point: A municipality generally cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm.

Student note: If the municipality makes a prima facie showing that the accident occurred while a storm was in progress, the burden shifts to the plaintiff to raise a triable issue of fact as to whether the precipitation from the storm in progress was not the cause of the accident.

Case:  Ali v. Village of Pleasantville, NY Slip Op 03385 (2d Dept. 2012).

Here is the decision.

 Tomorrow’s issue: Statute of frauds.

Labor Law.

Practice point: The reference in 12 NYCRR 23-1.7(d) to ‘passageways’ can encompass a permanent staircase, when that staircase is the sole access to the work site.

Student note: § 241(6) does not apply to routine exterior window washing.

Case: Wowk v. Broadway 280 Park Fee, LLC, NY Slip Op 03274 (1st Dept. 2012).

Here is the decision.

 Tomorrow’s issue: The storm-in-progress rule.

Landlord's duty to protect.

Practice point: While a landlord is not an insurer of tenant safety, a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances.

Student note: This duty includes an obligation to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person, but this duty only arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so.

Case: Banner v. New York City Housing Auth., NY Slip Op 03269 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Labor Law.

Correcting a judgment.

Practice point: Under CPLR 5019(a), a trial court has the discretion to correct a judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party.

Student note: Where the alleged error is substantive, other than one that is clearly inconsistent with the intentions of the court and the parties as demonstrated by the record, relief should be obtained either through an appeal from the judgment, or, if grounds for vacatur exist, through a motion to vacate pursuant to CPLR 5015(a).

Case: Johnson v. Societe Generale S.A., NY Slip Op 03268 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Landlord’s duty to protect.                    

The continuous treatment doctrine.

Practice point: A physician or hospital cannot escape liability under the doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, where it treated the patient continuously over the relevant time period for symptoms that are ultimately traced to that condition.

Student note: The premise underlying the doctrine is that a plaintiff should not have to interrupt ongoing treatment to bring a lawsuit, because the doctor not only is in a position to identify and correct the malpractice, but also is best placed to do so.

Case: Chestnut v. Bobb-McKoy, NY Slip Op 03267 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue:  Correcting a judgment.

Mechanic's liens.

Practice point: A contractor who performs work for, or provides equipment to, a tenant may impose a mechanic's lien against the premises, where the owner of the premises affirmatively gave consent for the work or equipment directly to the contractor, but not where the owner has merely approved or acquiesced in the undertaking of such work or the providing of such equipment.

Student note: To sustain the lien, the owner must either be an affirmative factor in procuring the improvement to be made, or, having possession and control of the premises, assent to the improvement in the expectation that the owner will reap the benefit of it.

Case: Mediterranean Contr., Inc. v. 115 Hoyt, LLC, NY Slip Op 03149 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: The continuous treatment doctrine.

Seeking a temporary injunction.

Practice point: A motion for a temporary injunction opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading.

Student note: However, this power does not extend to an evaluation of conflicting evidence, and so the motion court may not, on its own initiative, convert a motion for a preliminary injunction into one for summary judgment without giving adequate notice to the parties and affording them an opportunity to lay bare their proof.

Case: Grand Aerie of Fraternal Order of Eagles v. Mostrando, NY Slip Op 03139 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Mechanic’s liens.

Account stated.

Practice point: An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due. The agreement may be express, or it may be implied by the retention of a bill without objection for an unreasonable period of time and from the surrounding circumstances.

Student note: Whether a bill has been held without objection for a period of time sufficient to give rise to an inference of assent is ordinarily a question of fact, and becomes a question of law only in those cases where only one inference is rationally possible.

Case: Accent Collections, Inc. v. Cappelli Enters., Inc., NY Slip Op 03120 (2d Dept. 2012).

Here is the decision.

Monday’s issue:  Seeking a temporary injunction.

Tort actions against the City.

Practice point: A tort action against a municipality cannot be maintained unless a timely notice of claim is served, and the action is commenced within one year and 90 days after the happening of the event upon which the claim is based.

Student note: The court is without power to consider an application to file a late notice of claim after expiration of that limitations period.

Case: Turner v. City of New York, NY Slip Op 03107 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue:  Account stated.

Appeals from final and non-final judgments.

Practice point: Pursuant to CPLR 5501(a)(1), an appeal from a final judgment brings up for review any non-final judgment or order which necessarily affects the final judgment.

Student note: When an appeal from an intermediate order is perfected together with an appeal from a final judgment, the appeal from the intermediate order must be dismissed and any error alleged, to the extent that it affects the final judgment, may be reviewed upon the appeal from the final judgment.

Case: Retta v. 160 Water St. Assoc., L.P., NY Slip Op 03092 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Tort actions against the City.

Anticipatory breach.

Practice point: By definition an anticipatory breach cannot be committed by a party already in material breach of an executory contract. It is well settled that an anticipatory breach of a contract is one that occurs before performance by the breaching party is due.

Student note: The rationale behind the doctrine is that it gives the non-repudiating party an opportunity to treat a repudiation as an anticipatory breach without having to futilely tender performance or wait for the other party's time for performance to arrive.

Case: Kaplan v. Madison Park Group Owners, LLC, NY Slip Op 03086 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Appeals from final and non-final judgments.