Monday, June 30, 2008

Actions in equity.

Practice point: In an action sounding in equity, the recovery of interest is within the court's discretion, pursuant to CPLR 5001[a].

Case: Dayan v. York, NY Slip Op 04827 (2d Dept. 2008)

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Friday, June 27, 2008

Preclusion of expert testimony.

Practice point: Preclusion for failure to comply with CPLR 3101(d) is improper unless there is evidence of intentional or willful failure to disclose and a showing of prejudice.

Case: Cruz v. Gustitos, NY Slip Op 04826 (2d Dept. 2008)

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Thursday, June 26, 2008

Failure to communicate medical findings.

Practice point: A defendant-physician may be held liable for ordinary negligence for a failure to communicate significant medical findings to a patient.

Case: Bennett v. Long Is. Jewish Med. Ctr., NY Slip Op 04823 (2d Dept. 2008)

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Wednesday, June 25, 2008

Defective products.

Practice point: Whether pleading in strict products liability, breach of warranty or negligence, a consumer-plaintiff has the burden of showing that the product's defect was a substantial factor in causing the alleged injury, and proof of injury, standing alone, is insufficient to prove that the product was defective for its intended use.

Case: Beckford v. Pantresse, Inc., NY Slip Op 04822 (2d Dept. 2008)

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Tuesday, June 24, 2008

Statute of Limitations.

Practice point: The tolling of the statute of limitations for the alleged disability of insanity may not extend the limitations period beyond ten years after the cause of action accrues, pursuant to CPLR 208.

Case: Santo B. v. Roman Catholic Archdiocese of N.Y., NY Slip Op 04821 (2d Dept. 2008)

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Monday, June 23, 2008

Mortgage contingency clauses.

Practice point: Where a contract for the sale of real property contains a mortgage contingency clause, purchasers are entitled to recover their down payment if the mortgage is not approved, as long as they made a genuine effort to secure mortgage financing and acted in good faith.

Case: Astrada v. Archer, NY Slip Op 04819 (2d Dept. 2008)

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Friday, June 20, 2008

Retaining liens.

Practice point: If discharged for cause, an attorney is not entitled either to a retaining lien or compensation.

Case: Alami v. Volkswagen of America, NY Slip Op 04817 (2d Dept. 2008)

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Thursday, June 19, 2008

General Obligations Law § 395-b.

Practice point: There is no private right of action based on this statute which prohibits premises' owners or managers from knowingly permitting installation of a viewing device "for the purpose of surreptitiously observing the interior of any fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to guests or patrons in a motel, hotel or inn."

Case: Thomas v. Northeast Theatre Corp., NY Slip Op 04778 (1st Dept. 2008)

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Wednesday, June 18, 2008

Written releases.

Practice point: General Obligations Law § 5-326 does not invalidate a release executed by a New York City Marathon runner, since the entry fee is for participation in the marathon, and is not an admission fee allowing the runner to use the City-owned public roadways over which the marathon is run.

Case: Brookner v. New York Roadrunners Club, NY Slip Op 04638 (2d Dept. 2008)

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Tuesday, June 17, 2008

Prior written notice.

Practice point: A municipality with a prior written notice statute is not liabile for injuries caused by an improperly maintained roadway, absent the notice, unless (1) the municipality created the defect through an affirmative act of negligence, or (2) the municipality derived a special benefit from a special use of the roadway.

Case: Bogorova v. Village of Atlantic Beach, NY Slip Op 04637 (2d Dept. 2008)

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Monday, June 16, 2008

Labor Law.

Practice point: A plaintiff's rewiring of defendant's telephone system constitutes an altering of the premises, which falls within the ambit of construction work, pursuant to Labor Law § 241(6).

Case: Becker v. ADN Design Corp., NY Slip Op 04634 (2d Dept. 2008)

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Friday, June 13, 2008

Labor Law.

Practice point: The relationship necessary for Labor Law liability depends on whether the plaintiff was "permitted or suffered to work" on the premises, pursuant to Labor Law § 2[7], in fulfillment of an obligation, even if the benefit bestowed in exchange for the work was nonmonetary, pursuant to Labor Law § 2[5].

Case: Aloise v. Saulo, NY Slip Op 04629 (2d Dept. 2008)

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Thursday, June 12, 2008

Administrative Law.

Practice point: At a disciplinary hearing on allegations of workplace violence, 911 recordings are admissable since they are not official records relating to the employee's arrest or prosecution, and thus are not subject to the sealing statute, pursuant to CPL 160.50.

Case: Dockery v. New York City Hous. Auth., NY Slip Op 04753 (1st Dept. 2008)

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Wednesday, June 11, 2008

Service of process.

Practice point: A plaintiff can establish personal jurisdiction, pursuant to CPLR 308(2), when the process server delivers the summons with notice to a security guard at defendant's place of business, and also mails a copy to defendant's place of employment.

Case: Schorr v. Persaud, NY Slip Op 04440 (1st Dept. 2008)

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Tuesday, June 10, 2008

Labor Law § 240(1)

Practice point: There is no Labor Law § 240(1) liability when a worker, who had been properly equipped with safety devices, is injured after stepping into a hole in the sidewalk while exiting the bridge he had been painting.

Case: Andrade v. Triborough Bridge & Tunnel, NY Slip Op 04437 (1st Dept. 2008)

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Monday, June 9, 2008

Article 81.

Practice point: An annulment of marriage is an available remedy in an article 81 proceeding.

Case: Kaminester v. Foldes, NY Slip Op 04557 (1st Dept. 2008)

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Friday, June 6, 2008

The "storm in progress" rule.

Practice point: A property owner is not liable for accidents resulting from the accumulation of snow and ice on its premises until, after the storm has passed, the owner has had adequate time to ameliorate the hazards caused by the storm.

Case: Marchese v. Skenderi, NY Slip Op 04326 (2d Dept. 2008)

Click here for the uncorrected opinion.

Thursday, June 5, 2008

Change of venue.

Practice point: A defendant's timely motion to change venue is properly noticed and heard in the county which defendant specifies as proper, pursuant to CPLR 511(a),(b).

Case: Kuzmin v. Nevsky, NY Slip Op 04324 (2d Dept. 2008)

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Wednesday, June 4, 2008

Adverse possession.

Practice point: If a municipality owns property in its governmental capacity, it cannot lose title through adverse possession.

Case: Gallo v. City of New York, NY Slip Op 04316 (2d Dept. 2008)

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Tuesday, June 3, 2008

The emergency doctrine.

Practice point: The emergency doctrine provides that when a person is faced with a sudden and unexpected situation which is not of the person's own making, and which leaves little or no time for deliberation, no negligence will attach if the person took reasonable and prudent action.

Case: Francis v. Guzman, NY Slip Op 04315 (2d Dept. 2008)

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Monday, June 2, 2008

Fraud.

Practice point: Liability for fraud may be premised on knowing participation in a scheme to defraud, even if that participation does not by itself suffice to constitute a fraud.

Case: Danna v. Malco Realty, Inc., NY Slip Op 04309 (2d Dept. 2008)

Click here for the uncorrected opinion.