Friday, August 29, 2008

Res judicata.

Practice point: A disposition on the merits bars litigation between the same parties, or those in privity with them, on a cause of action arising out of the same transaction or series of transactions as a cause of action which was, or which could have been, raised in a prior proceeding.

Case: Barash v. Northern Trust. Corp., NY Slip Op 06628 (2d Dept. 2008)

The opinion is here.

Thursday, August 28, 2008

Medical malpractice.

Practice point: The required elements of proof in a medical malpractice action are (1) a deviation or departure from good and accepted standards of medical practice, and (2) evidence that the departure was a proximate cause of plaintiff’s injury.

Case: Elias v. Bash, NY Slip Op 06587 (2d Dept. 2008)

The opinion is here.

Wednesday, August 27, 2008

School Law.

Practice point: A school has a duty to supervise its students with the same degree of care as an ordinarily prudent parent in comparable circumstances.

Case: Doe v. Department of Education of the City of New York, NY Slip Op 06586 (2d Dept. 2008)

The opinion is here.

Tuesday, August 26, 2008

Motion practice.

Practice point: A motion to strike an answer, pursuant to CPLR 3126, will be denied if defendant did not have prior notice that this sanction was imminent.

Case: Sidelev v. Tsal-Tsalko, NY Slip Op 05750 (1st Dept. 2008)

The opinion is here.

Monday, August 25, 2008

Dog bites.

Practice point: To recover in strict liability for a dog bite, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of them. Admissible evidence would include a prior attack; the dog's tendency to growl, snap, or bare its teeth; the way the dog was restrained; and the fact that the dog was kept as a guard dog.

Case: Grubb v. Healy, NY Slip Op 05044 (2d Dept. 2008)

The opinion is here.

Friday, August 22, 2008

Motion practice.

Practice point: If a matter is stricken from the trial calendar and designated as inactive, but not dismissed, a plaintiff seeking to restore is not required to submit an affidavit of merit or an explanation as to why the case was removed from active status.

Case: Ross v. Brookdale Univ. Hosp. & Med. Ctr., NY Slip Op 06597 (2d Dept. 2008)

The opinion is here.

Thursday, August 21, 2008

Civil contempt.

Practice point: To sustain a determination of civil contempt, a court must find that the alleged contemnor violated the court’s lawful and express order, and that, as a result, a party to the litigation was prejudiced, pursuant to Judiciary Law § 753[A][3].

Case: Village of Plandome Manor v. Ioannou, NY Slip Op 06594 (2d Dept. 2008)

The opinion is here.

Wednesday, August 20, 2008

Statute of limitations.

Practice point: The statute of limitations for tort actions against the MTA is one year and 30 days, pursuant to Public Authorities Law § 1276[1],[2]. For negligence actions against the Transit Authority, the statute is one year and 90 days, pursuant to Public Authorities Law § 1212[3].

Case: Sullivan v. Atlantic Paratransit of N.Y.C., Inc., NY Slip Op 05920 (2d Dept. 2008)

The opinion is here.

Tuesday, August 19, 2008

Quiet enjoyment.

Practice point: A plaintiff may properly plead a cause of action for breach of the covenant of quiet enjoyment by alleging a constructive eviction, namely, because the cooperative failed to make necessary repairs, the conditions in plaintiff’s home compelled plaintiff to move out.

Case: Granirer v. Bakery, Inc., NY Slip Op 06582 (1st Dept. 2008)

The opinion is here.

Monday, August 18, 2008

Summary judgment.

Practice point: A court may set the time within which a party may move for summary judgment, pursuant to CPLR 3212(a), through a so-ordered stipulation.

Case: Ford v. City of New York, NY Slip Op 06579 (1st Dept. 2008)

The opinion is here.

Friday, August 15, 2008

Hearsay.

Practice point: Even if unrelated to diagnosis or treatment, a hearsay entry in a hospital record may be admissible at trial if the entry is inconsistent with a party’s position.

Case: Coker v. Bakkal Foods, Inc., NY Slip Op 05876 (2d Dept. 2008)

Click here for the opinion.

Thursday, August 14, 2008

Labor Law.

Practice point: A plaintiff’s failure to identify, in the Complaint or Bill of Particulars, an alleged Code violation is not necessarily fatal to a Labor Law § 241(6) cause of action.

Case: Galarraga v. City of New York, NY Slip Op 06545 (2d Dept. 2008)

Click here for the opinion.

Wednesday, August 13, 2008

Employment Law.

Practice point: In stating a claim of vicarious liability, a plaintiff must demonstrate that the employer had knowledge of, and acquiesced in or condoned, the discriminatory conduct. An employer’s failure to act is the same as affirmative conduct.

Case: Bianco v. Flushing Hospital Med. Ctr., NY Slip Op 06542 (2d Dept. 2008)

Click here for the opinion.

Tuesday, August 12, 2008

Fee disputes.

Practice point: The Fee Dispute Resolution Program does not apply when the amount in dispute exceeds $50,000, pursuant to 22 NYCRR 137.1[b][2].

Case: Goldman & Greenbaum, P.C. v. Filippatos, NY Slip Op 05749 (1st Dept. 2008)

Click here for the opinion.

Monday, August 11, 2008

Filing retainer statements.

Practice point: An attorney’s belated filing of a retainer statement, pursuant to 22 NYCRR § 603.7(a)(3), is insufficient to preserve the right to recover legal fees.

Case: Fishkin v. Taras, NY Slip Op 06505 (1st Dept. 2008)

Click here for the opinion.

Friday, August 8, 2008

Untimely pleadings.

Practice point: The City's excuse for its late answer, namely, that it receives thousands of summonses each month, is insufficient to compel plaintiff to accept the pleading, pursuant to CPLR 3012(d).

Case: Holloman v. City of New York, NY Slip Op 05480 (2d Dept. 2008)

Click here for the opinion.

Thursday, August 7, 2008

Privileged statements.

Practice point: Statements made by parties, attorneys and witnesses will be absolutely privileged only if they are made in the course of a judicial or quasi-judicial proceeding and are material and pertinent to the issue in dispute.

Case: Ingber v. Mallilo, NY Slip Op 05481 (2d Dept. 2008)

Click here for the opinion.

Wednesday, August 6, 2008

Legal malpractice.

Practice point: An action alleging legal malpractice is deemed to accrue on the date the malpractice was committed, not when it was discovered.

Case: Hasty Hills Stables, Inc. v. Dorfman, Lynch, Knoebel & Conway, LLP, NY Slip Op 05479 (2d Dept. 2008)

Click here for the opinion.

Tuesday, August 5, 2008

Rear-end collisions.

Practice point: A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence, and the moving vehicle's operator is required to offer an adequate non-negligent explanation for the accident.

Case: Arias v. Rosario, NY Slip Op 05467 (2d Dept. 2008)

Click here for the opinion.

Monday, August 4, 2008

Tortious interference.

Practice point: An agreement terminable at will may be tortiously interfered with through malicious or wrongful conduct.

Case: Smith v. Meridian Tech., Inc., NY Slip Op 05677 (2d Dept. 2008)

Click here for the opinion.

Friday, August 1, 2008

Retainer agreements.

Practice point: An attorney's failure to comply with the rules on retainer agreements, pursuant to 22 NYCRR 1215.1, does not preclude the recovery of legal fees for services provided.

Case: Nicoll & Davis LLP v. Ainetchi, NY Slip Op 05763 (1st Dept. 2008)

Click here for the uncorrected opinion.