Thursday, July 31, 2008

Disability discrimination.

Practice point: A complaint states a prima facie case of disability discrimination under Executive Law § 296 if the plaintiff suffers from a disability and the disability engendered the behavior for which plaintiff was discriminated against in the terms, conditions, or privileges of plaintiff's employment.

Case: Staskowski v. Nassau Community College, NY Slip Op 06369 (2d Dept. 2008)

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Wednesday, July 30, 2008

Appeals as of right.

Practice point: No appeal lies as of right from that part of an order which does not decide a motion made on notice, pursuant to CPLR 5701[a][2].

Case: Mohler v. Nardone, NY Slip Op 06361 (2d Dept. 2008)

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Tuesday, July 29, 2008

Expert witness testimony.

Practice point: If the issue of an allegedly unsafe condition is within the common knowledge and experience of jurors, a plaintiff is under no obligation to rebut a defendant’s expert’s conclusions with expert testimony of its own.

Case: Infante v. Jerome Car Wash, NY Slip Op 05364 (1st Dept. 2008)

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Monday, July 28, 2008

Negligent parental supervision.

Practice point: New York does not recognize a cause of action based on negligent parental supervision.

Case: Mazza v. Ed Tompkins Plumbing Corp., NY Slip Op 06360 (2d Dept. 2008)

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Friday, July 25, 2008

Statute of limitations.

Practice point: Pursuant to CPLR 3211[a][5], a plaintiff who has timely interposed a claim against one defendant may be barred by the statute of limitations from adding another defendant, as a matter of right, pursuant to CPLR 3025[a]; 1003.

Case: Hirsh v. Perlmutter, NY Slip Op 06359 (2d Dept. 2008)

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Thursday, July 24, 2008

Alternative dispute resolution.

Practice point: Arbitration and other alternative procedures for resolving disputes are creatures of contract, and while the law favors such alternatives to litigation, a party will not be denied judicial resolution of a controversy unless there is a governing provision requiring alternative dispute resolution.

Case: FCI Group, Inc. v. City of New York, NY Slip Op 06352 (1st Dept. 2008)

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Wednesday, July 23, 2008

Service.

Practice point: Pursuant to CPLR 317, a defendant who has been served with a summons other than by personal delivery may seek relief from a default upon a showing that it did not receive notice of the summons in time to defend, and that it has a meritorious defense.

Case: Fatima v. Twenty Seven-Twenty Four Realty Corp., NY Slip Op 06284 (2d Dept. 2008)

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Tuesday, July 22, 2008

Premium fees.

Practice point: An attorney's premium fee is enforceable if the retainer agreement satisfies the plain language and specificity requirements of 22 NYCRR 1400.3(8). The client must be advised beforehand as to how such a fee will be calculated, e.g., as a flat amount, a fixed percentage or a reasonable percentage of the total hourly charges incurred.

Case: Sheresky Aronson & Mayefsky, LLP v.Whitmore, NY Slip Op 06175 (1st Dept. 2008)

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Monday, July 21, 2008

Privacy law.

Practice point: New York State does not recognize the common-law tort of invasion of privacy except to the extent it comes within the ambit of Civil Rights Law §§ 50 and 51. These statutes protect against the appropriation of a plaintiff's name or likeness for a defendant's benefit and create a cause of action in favor of any person whose name, portrait or picture is used for advertising purposes or for trade without the plaintiff's consent.

Case: Farrow v. Allstate Insurance Co., NY Slip Op 06283 (2d Dept. 2008)

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Friday, July 18, 2008

Summary judgment motions.

Practice point: A party should be given a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment.

Case: Richardson v. New York City Transit Authority, NY Slip Op 04675 (2d Dept. 2008)

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Thursday, July 17, 2008

Property.

Practice point: The title owner of property encumbered by a mortgage or a tax lien has the right to redeem the property at any time prior to the actual sale under a judgment of foreclosure.

Case: NYCTL 1996-1 Trust v. Moore, NY Slip Op 04667 (2d Dept. 2008)

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Wednesday, July 16, 2008

Statute of limitations.

Practice point: Actions for malpractice against nonmedical professionals are governed by the three-year statute of limitations, pursuant to CPLR 214(a)(6).

Case: M.G. McLaren, P.C. v. Massand Eng'g, L.S., P.C., NY Slip Op 04661 (2d Dept. 2008)

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Tuesday, July 15, 2008

Specific performance.

Practice point: When requiring specific performance on a contract for the sale of real property, a seller's time-of-the-essence letter is a nullity unless it gives the purchaser sufficient time to perform.

Case: Iannucci v. 70 Wash. Partners, LLC, NY Slip Op 04653 (2d Dept. 2008)

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Monday, July 14, 2008

Labor Law.

Practice point: Pursuant to Labor Law § 240(1), the failure to provide any protective devices for workers establishes, as a matter of law, an owner's or contractor's liability.

Case: Hamilton v. Kushnir Realty, NY Slip Op 04650 (2d Dept. 2008)

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Friday, July 11, 2008

Non-compete agreements.

Practice point: Covenants not to compete will be enforced only if they are reasonably limited as to time, geographic area and scope; are necessary to protect the employer's legitimate interests; are not harmful to the public; and are otherwise not unduly burdensome.

Case: Ricca v. Ouzounian, NY Slip Op 04852 (2d Dept. 2008)

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Thursday, July 10, 2008

Breach of contract.

Practice point: Absent a duty on which tort liability might be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty.

Case: Rakylar v. Washington Mutual Bank, NY Slip Op 04850 (2d Dept. 2008)

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Wednesday, July 9, 2008

School law.

Practice point: Schools are not strictly liable for every thoughtless or careless act by which one student may injure another. To recover for injuries caused by another student, a plaintiff must establish that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could reasonably have been anticipated.

Case: Paca v. City of New York, NY Slip Op 04848 (2d Dept. 2008)

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Tuesday, July 8, 2008

Mechanic's liens.

Practice point: In order to maintain and enforce a mechanic's lien, a plaintiff must demonstrate that the defendant consented to the work performed on its property, pursuant to Lien Law § 3. The consent cannot be mere acquiescence and benefit, but must be some affirmative act or course of conduct establishing confirmation.

Case: Modern Era Construction, Inc. v. Shore Plaza, LLC, NY Slip Op 04847 (2d Dept. 2008)

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Monday, July 7, 2008

Attorney's fees.

Practice point: Where a lease provision gives a landlord the right to recover attorney's fees, those fees must be reasonable, considering factors such as time spent on the case, the difficulties involved, the nature of the services rendered, the amount in dispute, the attorney's professional standing and the results obtained.

Case: Miller Realty Assoc. v. Amendola, NY Slip Op 04846 (2d Dept. 2008)

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Thursday, July 3, 2008

Contracts.

Practice point: While a contract may be voided and a party may recover damages when it establishes that it was compelled to agree because of a wrongful threat by the other party, there is no actionable duress where the alleged menace was to exercise a legal right.

Case: Madey v. Carmen, NY Slip Op 04844 (2d Dept. 2008)

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Wednesday, July 2, 2008

Discovery.

Practice point: Documents generated in connection with the performance of a medical or quality assurance review, pursuant to Education Law § 6527(3), or which are required by the department of health, pursuant to Public Health Law § 2805-l, are ordinarily not discoverable.

Case: Fray v. Fulton Commons Care Ctr., Inc., NY Slip Op 04831 (2d Dept. 2008)

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Tuesday, July 1, 2008

Home improvement contractors.

Practice point: Courts strictly construe the licensing requirements for home improvement contractors, pursuant to Administrative Code of the City of New York § 20-387(a), and public policy prohibits an unlicensed home improvement contractor from recovering either in contract or in quantum meruit.

Case: Metrobuild Assoc., Inc. v. Nahoum, NY Slip Op 04625 (1st Dept. 2008)

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