Practice point: Plaintiff's failure to plead an Industrial Code violation, other than in its opposition to a summary judgment motion, is not fatal to the § 241(6) cause of action.
Practitioners should note that when alleging a dangerous worksite condition, a plaintiff must demonstrate that defendant had control over the work site and actual or constructive notice.
Case: Fuchs v. Austin Mall Assoc., LLC, NY Slip Op 03863 (2d Dept. 2009)
The opinion is here.
Monday’s issue: Partnership Law.
You will find another instructive case here.
May 29, 2009
May 28, 2009
Conflict of laws.
Practice point: Where there is a true conflict between the laws of New Jersey and New York, and each jurisdiction favors its own domiciliary, the law of the place of the injury ordinarily controls.
Practitioners should note that the Court may apply the exception to this rule (1) if there were sufficient contacts of the parties, the incident, and New York, or (2) if enforcing New Jersey law would violate New York’s public policy, its Constitution or its judicial decisions.
Case: Begley v. City of New York, NY Slip Op 03856 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Labor Law.
You will find another instructive case here.
Practitioners should note that the Court may apply the exception to this rule (1) if there were sufficient contacts of the parties, the incident, and New York, or (2) if enforcing New Jersey law would violate New York’s public policy, its Constitution or its judicial decisions.
Case: Begley v. City of New York, NY Slip Op 03856 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Labor Law.
You will find another instructive case here.
May 27, 2009
Legal malpractice.
Practice point: The suit to recover damages must be commenced within three years from accrual of the cause of action.
Practitioners should note that a legal malpractice cause of action accrues on the date the malpractice was committed, not when it was discovered.
Case: Byron Chem. Co., Inc. v. Groman, NY Slip Op 03465 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Conflict of laws.
You will find another instructive case here.
Practitioners should note that a legal malpractice cause of action accrues on the date the malpractice was committed, not when it was discovered.
Case: Byron Chem. Co., Inc. v. Groman, NY Slip Op 03465 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Conflict of laws.
You will find another instructive case here.
May 26, 2009
Family Law.
Practice point: There likely will be a change in custody only if, in the best interests of the child, the totality of the circumstances warrants a modification.
Practitioners should note that the court will consider factors such as the home environment and the custodial parent’s guidance; each parent’s ability to provide for the child's emotional and intellectual development; and each parent’s financial status as it relates to providing for the child.
Case: McGovern v. Lynch, NY Slip Op 03736 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Legal malpractice.
You will find another instructive case here.
Practitioners should note that the court will consider factors such as the home environment and the custodial parent’s guidance; each parent’s ability to provide for the child's emotional and intellectual development; and each parent’s financial status as it relates to providing for the child.
Case: McGovern v. Lynch, NY Slip Op 03736 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Legal malpractice.
You will find another instructive case here.
May 25, 2009
Memorial Day.
Happy and safe Memorial Day to my fellow Vietnam veterans and to the men and women, of whatever service or stripe, who have served to keep us free.
May 22, 2009
Motion practice.
Practice point: To oppose plaintiff’s motion for leave to enter a default judgment for failing to timely serve an answer, defendant must demonstrate a justifiable excuse for its default and a meritorious defense.
Practitioners should note that defendant's insurance carrier's lengthy delay before defending the action, without more, is insufficient to establish a reasonable excuse.
Case: Leifer v. Pilgreen Corp., NY Slip Op 03872 (2d Dept. 2009)
The opinion is here.
Tuesday’s issue: Family Law.
You will find another instructive case here.
Practitioners should note that defendant's insurance carrier's lengthy delay before defending the action, without more, is insufficient to establish a reasonable excuse.
Case: Leifer v. Pilgreen Corp., NY Slip Op 03872 (2d Dept. 2009)
The opinion is here.
Tuesday’s issue: Family Law.
You will find another instructive case here.
May 21, 2009
Municipalities Law.
Practice point: An injured police officer looking to recover under General Municipal Law § 205-e must identify a statute or ordinance which defendant violated, and must plead facts from which it may be inferred that defendant's negligence directly or indirectly caused the injuries.
Practitioners should note that proving indirect cause does not require the same proof as proximate cause in common-law negligence, but a practical or reasonable connection between the statutory or regulatory violation and the injury.
Case: Cerati v. Berrios, NY Slip Op 03469 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
You will find another instructive case here.
Practitioners should note that proving indirect cause does not require the same proof as proximate cause in common-law negligence, but a practical or reasonable connection between the statutory or regulatory violation and the injury.
Case: Cerati v. Berrios, NY Slip Op 03469 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
You will find another instructive case here.
May 20, 2009
Legal malpractice.
Practice point: A legal malpractice claim may result from giving faulty advice to a client.
Practitioners should note that an attorney may be liable for ignorance of the rules of practice; failure to comply with conditions precedent to suit; neglect to prosecute; or failure to conduct adequate research.
Case: Mortenson v. Shea, NY Slip 03611 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Municipalities Law.
You will find another instructive case here.
Practitioners should note that an attorney may be liable for ignorance of the rules of practice; failure to comply with conditions precedent to suit; neglect to prosecute; or failure to conduct adequate research.
Case: Mortenson v. Shea, NY Slip 03611 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Municipalities Law.
You will find another instructive case here.
May 19, 2009
Motion practice.
Practice point: Plaintiff’s motion to vacate a conditional preclusion order will be denied after plaintiff failed to comply with three discovery orders, and did not offer a reasonable excuse for those failures or set forth the merits of the claim.
Practitioners should note that since counsel was present when the order was issued, plaintiff was on notice of it and is bound by its provisions.
Case: Ensley v. Snapper, Inc., NY Slip Op 03594 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Legal malpractice.
You will find another instructive case here.
Practitioners should note that since counsel was present when the order was issued, plaintiff was on notice of it and is bound by its provisions.
Case: Ensley v. Snapper, Inc., NY Slip Op 03594 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Legal malpractice.
You will find another instructive case here.
May 18, 2009
Damages.
Practice point: If plaintiff wins his claim that he was induced by material misrepresentations to stay at defendant-law firm, he can get the difference between the signing bonus offered by the other firm and what he got from defendant for agreeing to stay.
Practitioners should note that plaintiff’s damages may not include anything based on employment going forward with the other firm, since that would be speculative.
Case: Hoeffner v. Orrick, Herrington & Sutcliffe LLP, NY Slip Op 03451 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
You will find another instructive case here.
Practitioners should note that plaintiff’s damages may not include anything based on employment going forward with the other firm, since that would be speculative.
Case: Hoeffner v. Orrick, Herrington & Sutcliffe LLP, NY Slip Op 03451 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
You will find another instructive case here.
May 15, 2009
Disabilities Law.
Practice point: Under New York and federal law, petitioner must prove a prima facie claim of discrimination, namely, that she has a disability; was job-qualified; and suffered an adverse employment action or was terminated under circumstances giving rise to an inference of discrimination.
Practitioners should note that the burden then shifts to the employer to rebut the presumption of discrimination by offering legitimate, independent and nondiscriminatory reasons for the employer’s decision. Petitioner is still entitled to prove that the employer’s stated reasons were merely a pretext for discrimination.
Case: Cuccia v. Martinez & Ritorto, PC, NY Slip Op 03444 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Damages.
You will find another instructive case here.
Practitioners should note that the burden then shifts to the employer to rebut the presumption of discrimination by offering legitimate, independent and nondiscriminatory reasons for the employer’s decision. Petitioner is still entitled to prove that the employer’s stated reasons were merely a pretext for discrimination.
Case: Cuccia v. Martinez & Ritorto, PC, NY Slip Op 03444 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Damages.
You will find another instructive case here.
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