Strict products liability.

Practice point: In order to establish a prima facie case based on design defects, the plaintiff must show that the manufacturer or seller breached its duty to market safe products by marketing a product designed so that it was not reasonably safe, and that the defective design was a substantial factor in causing plaintiff's injury. In order to determine whether a product was designed so that it was not reasonably safe, the risks inherent in the product must be balanced against the product's utility and cost. A court will consider factors such as the utility of the product to the public and to the individual user; the likelihood that it will cause injury; the availability of a safer design; the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; the ability of the plaintiff to have avoided injury by careful use of the product; the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and the manufacturer's ability to spread any cost related to improving the safety of the design. With regard to the misuse of a product, it may be determined that even with adequate warnings, a product may be so dangerous, and its misuse may be so foreseeable, that the utility of the product does not outweigh the risk inherent in marketing it.

Case:  M.H. v. Bed Bath & Beyond Inc., NY Slip Op 07790 (1st Dep't November 9, 2017)

Here is the decision.

Court holiday.

A dismissed legal malpractice claim.

In this action commenced by plaintiffs against defendants based on defendants' representation of plaintiffs in an underlying federal court action, dismissal of the legal malpractice claim was affirmed since the claim rested on retrospective complaints about the outcome of defendants' strategic choices and tactics, without any facts cited to support a claim that the choices were unreasonable. The breach of contract and breach of fiduciary duty claims were reinstated, as they are based on billing issues and are not duplicative of the claims regarding the alleged mishandling of the trial.

Practice point:  The firm's failure to anticipate the trial court's evidentiary rulings regarding the expert report does not establish negligence.

Case:  Brenner v. Reiss Eisenpress, LLP, NY Slip Op 07781 (1st Dep't November 9, 2017)

Here is the decision.

Doctrine of primary assumption of risk.

Practice point:  Under the doctrine, 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 participation.  By freely assuming a known risk, a plaintiff negates any duty on the part of the defendant to safeguard the plaintiff from the risk.  If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty. However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

Case:  Hanson v. Sewanhaka Cent. High Sch. Dist., NY Slip Op 07711 (2d Dep't November 8, 2017)

Here is the decision.

A motion to set aside a verdict.

Practice point:  Pursuant to CPLR 4404(a), a court may set aside a verdict and direct that judgment be entered in favor of a party entitled to judgment as a matter of law, or it may order a new trial where the verdict is contrary to the weight of the evidence or in the interest of justice.  A motion to set aside a verdict in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise. In considering the motion, the trial judge must decide whether substantial justice has been done and whether it is likely that the verdict has been affected. In addition, the judge must look to common sense, experience, and a sense of fairness rather than to precedents in arriving at a decision.

Case:  Duran v. Temple Beth Sholom, Inc., NY Slip Op 07708 (2d Dep't November 8, 2017)

Here is the decision.

Vacating a judgment resulting from fraud.

Practice point:  A party who has lost an action as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action against the party who adduced the false evidence. Instead, the plaintiff's sole remedy is a motion to vacate the judgment.  In an exception to the rule, a party may commence a separate action where the alleged perjury or fraud in the underlying action was merely a means to the accomplishment of a larger fraudulent scheme which was greater in scope than the issues determined in the prior proceeding.

Case:  DeMartino v. Lomonaco, NY Slip Op 07706 (2d Dep't November 8, 2017)

Here is the decision.

A dismissed quantum meruit claim.

The Appellate Division affirmed dismissal, finding no triable issue of fact as to whether plaintiff could have expected compensation from defendants for its services, as the brokerage agreement states otherwise.

Practice point:  Plaintiff presented no evidence of any other express or implied agreement between the parties to show that plaintiff had an expectation of compensation by defendants for her services.

Case:  SPRE Realty, Ltd. v. Dienst, NY Slip Op 07775 (1st Dep't November 9, 2017)

Here is the decision.

Emergeny operations, auto accidents, and statutory privilege.

The Appellate Division affirmed defendants' motion for summary judgment, finding that defendant police officer was operating a police vehicle while performing an emergency operation and did not recklessly disregard the safety of others before the accident happened.

Practice point:  The fact that defendant was mistaken in believing that plaintiff was stopping her vehicle when he passed through the red light does not make his conduct reckless. Defendant testified that, as he approached the intersection, he reduced his speed and looked left and right, and that he was traveling approximately 10 miles above the speed limit when the accident occurred.  Defendant tried to avoid colliding with plaintiff by braking hard and turning the steering wheel to the right upon realizing that plaintiff's vehicle had entered the intersection.

Student note:  The question of whether the police vehicle's lights and siren were activated is immaterial because defendant was not required to activate either of these devices in order to be entitled to the statutory privilege of driving through the red light.

Case:  Lewis v. City of New York, NY Slip Op 07785 (1st Dep't November 9, 2017)

Here is the decision.

CPLR 4401

Practice point: The granting of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party.  In considering the motion, the evidence must be viewed in the light most favorable to the nonmoving party, and the court must afford the nonmoving party every inference which may properly be drawn from the facts presented.

Case:  Canale v. L & M Assoc. of N.Y., Inc., NY Slip Op 07701 (2d Dep't November 8,2017)

Here is the decision.

Statute of limitations as a bar to a malpractice claim.

Practice point:  In seeking to assert the statute of limitations, a moving defendant must demonstrate, prima facie, that the time within which the plaintiff could commence the cause of action has expired. If the movant satisfies its burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable. The continuous representation doctrine may toll the statute.  A prerequisite for the application of the doctrine is that the relationship be continuous with respect to the matter in which the malpractice is alleged.  A general professional relationship involving only routine contact is insufficient.  In addition, the doctrine applies only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.

Case:  Collins Bros. Moving Corp. v. Pierleoni, NY Slip Op 07586 (2d Dep't November 1, 2017)

Here is the decision.

Court holiday.