Contractual indemnification.

Practice point:  The right to contractual indemnification depends upon the specific language of the contract. A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances.

Student note:  A contract will be interpreted in accordance with the intent of the parties as expressed in the language of the agreement.

Case:  Del Vecchio v. Danielle Assoc., LLC, NY Slip Op 05185 (2d Dept. 2013).

Here is the decision. 

Tomorrow's issue:  Assuming the risk of a fall from a horse.

Moving for summary judgment in a legal malpractice action.

Practice point:  In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence.

Student note: To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements.

Case:  Barnave v. Davis, NY Slip Op 05184 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Contractual indemnification.

Defamation involving a matter of public concern.

Practice point:  When the alleged defamation arguably involves a matter of public concern, a private plaintiff must prove that the media-defendant acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.

Student note: Under the gross irresponsibility standard, a publisher must use verification methods that are reasonably calculated to produce accurate copy.

Case:  Matovick v. Times Beacon Record Newspapers, NY Slip Op 05051 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Moving for summary judgment in a legal malpractice action.

Equitable distribution of marital assets.

Practice point:  Equitable distribution does not necessarily mean equal distribution. The equitable distribution of marital assets must be based on the circumstances of the particular case and the consideration of a number of statutory factors, pursuant to Domestic Relations Law § 236[B][5][d]). Those factors include: the income and property of each party at the time of marriage and at the time of commencement of the divorce action; the duration of the marriage; the age and health of the parties; the loss of inheritance and pension rights; any award of maintenance; any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title; and any other factor which the court shall expressly find to be just and proper.

Student note:   The trial court is vested with broad discretion in making an equitable distribution of marital property, and unless it can be shown that the court improvidently exercised that discretion, its determination will not be undone on appeal.

Case:  Halley-Boyce v. Boyce, NY Slip Op 05047 (2d Dept. 2013).

Here is the decision.

Monday's issue: Defamation involving a matter of public concern.

Moving for summary judgment in a libel action.

Practice point:  The defendant's burden in support of summary judgment is not to prove as a matter of law that it did not publish with actual malice, but to point to deficiencies in the record that will prevent plaintiff from proving that fact by clear and convincing evidence. Here, defendants were granted summary judgment because they cited deficiencies in the record that prevent plaintiff from proving actual malice, that is, that defendants entertained serious doubts as to the truth of its publication or acted with a high degree of awareness of probable falsity at the time of publication.

Student note:  Plaintiff is a public figure, having put itself front and center in the public controversy over animal cruelty and seeking to influence public opinion and action on the issue. As a public figure, plaintiff must show by clear and convincing evidence that defendants published the ad at issue with actual malice in order to prevail on any claim of libel.

Case:  Humane League of Philadelphia, Inc. v. Berman & Co., NY Slip Op 04989 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Equitable distribution of marital assets.

The continuous treatment doctrine in a dental malpractice action.

Practice point:  The plaintiff failed to raise a triable issue as to whether the statute of limitations was tolled under the continuous treatment doctrine. The record establishes that the plaintiff and the defendant did not mutually agree upon or contemplate future consultation or treatment after August 2007, and that the defendant did not render treatment or examine the plaintiff after August 2007, approximately three years prior to the commencement of this action. The plaintiff's telephone conversation with the defendant, during which he allegedly told her that she did not need a post and core, did not raise a triable issue of fact as to whether she was undergoing an actual course of treatment.  The defendant's disagreement with the treatment recommendation of a different dentist, and his failure to render the treatment suggested by the other dentist despite the plaintiff's numerous attempts to obtain that treatment, did not raise a triable issue as to whether she was undergoing a continuing course of treatment with the defendant.

Student note:  The continuous treatment doctrine tolls the statute of limitations for a dental malpractice action when, among other things, the plaintiff demonstrates that, during the relevant period, he or she continued to seek, and in fact obtained from the defendant an actual course of treatment, denoted by affirmative and ongoing conduct by the dentist, such as surgery, therapy, or the prescription of medications.

Case:  Fraumeni v. Oakwood Dental Arts, LLC, NY Slip Op 05042 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Moving for summary judgment in a libel action.

Res ipsa, and credibility issues on a motion for summary judgment.

Practice point:  The Appellate Division affirmed the motion's court determination that res ipsa loquitur applies in this action involving an accident that occurred, according to plaintiff's testimony, when a garage door suddenly fell and struck him on the head, since this is the type of event that does not normally occur in the absence of negligence. Notwithstanding defendants' contentions that others could have had access to the garage door, plaintiff demonstrated sufficient exclusivity of control. Res ipsa loquitur does not require sole physical access to the instrumentality causing the injury and can be applied in situations where more than one defendant could have exercised exclusive control.

Student note:  A defendant's contradictory testimony concerning whether he was present and whether he activated the garage door was insufficient to warrant summary judgment dismissing the action as against him inasmuch as issues of credibility are not to be resolved on summary judgment.

Case:  Hutchings v. Yuter, NY Slip Op 04988 (1st Dept. 2013).

 Here is the decision.

Tomorrow's issue: The continuous treatment doctrine in a dental malpractice action.

Labor Law § 240.

Practice point:  To invoke the protections afforded by the statute, a plaintiff must demonstrate that he or she was both permitted or suffered to work on a building or structure and that he or she was hired by an owner, contractor or their agent, to work at the site. In addition, at the time of the accident the plaintiff must have engaged in an covered under the statute.

Student note:  Section 240 is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are not in a position to protect themselves from accidents. It will be liberally construed to achieve this purpose.

Case:  Gallagher v. Resnick, NY Slip Op 04774 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Res ipsa, and credibility issues on a motion for summary judgment.

Speed bumps, and failure to disclose experts.

Practice point:  While a landowner has a duty to maintain its premises in a reasonably safe manner, there is no duty on the part of a landowner to warn against an open and obvious condition, such as a speed bump, that is readily observable by those employing the reasonable use of their senses and is not inherently dangerous.

Student note:  A party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment. Here, however, the court declined to consider the affidavit of the plaintiffs' expert which was submitted after the filing of the note of issue and certificate of readiness.

Case:  Brande v. City of White Plains, NY Slip Op 04766 (2d Dept. 2013).

Here is the decision.

Monday's issue: Labor Law § 240.

Court holiday.

The courts are closed to mark Independence Day.

Tomorrow's issue: Speed bumps, and failure to disclose experts.

Summary judgment in a Labor Law action, attorneys' fees, and amending a bill of particulars.

Practice point:  The court granted summary judgment dismissing plaintiff's § 241(6) claim, as amended. Plaintiff's testimony showed that the rebar that allegedly caused him to fall was in the process of being installed and thus integral to the ongoing work, defeating his claim of a violation of 12 NYCRR 23-1.7(e)(2). Moreover, given plaintiff's vague and inconsistent testimony concerning the condition of the stacked rebar, his claim that the accident was caused by the rebar being stored in an unstable manner in violation of 12 NYCRR 23-2.1(a)(1) was based on mere speculation.

Defendants are entitled to the costs and attorneys' fees incurred by them in defense of this action. The contract clauses at issue provide for indemnification, including costs and fees arising from "any act or omission," and do not require proof of negligence to be enforced.  In any event, the record does not contain any evidence that defendants were negligent.

Student note:  The court permitted plaintiff to amend the bill of particulars, since no prejudice accrued from plaintiff's late invocation of violations of 12 NYCRR 23-1.7(e)(2) and 23-2.1(a)(1), and the claims entailed no new factual allegations or theories of liability.

Case: Flynn v. 835 6th Ave. Master L.P., NY Slip Op 04889 (1st Dept. 2013).

Here is the decision.

Friday's issue: Speed bumps, and failure to disclose experts.