Tuesday, September 30, 2008

Disinterment.

Practice point: A body may be disinterred on consent of the cemetery corporation, the plot’s owners, and the surviving spouse, children, and parents of the deceased, pursuant to N-PCL § 1510[e]. However, in the absence of consent, a court may grant permission to disinter upon a showing of a good and substantial reason. A petitioner's demonstration that the deceased spouse’s wish was that they be buried together, and that petitioner cannot get appropriate assurances from the plot’s other owners, is enough.

Case: Pring v. Cemetery, NY Slip Op 06840 (2d Dept. 2008)

The opinion is here.

Monday, September 29, 2008

Labor Law.

Practice point: While the reach of § 240(1) is not limited to work performed on actual construction sites, the injured plaintiff must have been working on the erecting, demolishing, repairing, altering, painting, cleaning or pointing of a building or structure. To succeed on a motion to dismiss because the statute does not apply, a defendant must offer evidentiary proof, in admissible form, as to the nature of the work plaintiff was performing at the time of the accident, and the manner in which the accident occurred.

Case: Valdivia v. Consolidated Resistance Co. of Am., Inc., NY Slip Op 06826 (2d Dept. 2008)

The opinion is here.

Friday, September 26, 2008

Motion practice.

Practice point: A motion for leave to renew a motion to reinstate a note of issue will be granted when it is supported by a properly framed certificate of readiness and by an affidavit, based on first-hand knowledge, showing that there is merit to the action; specifying why the note of issue was vacated; offering meritorious reasons for the reinstatement; and establishing that the case is ready for trial.

Case: Suburban Restoration Co., Inc. v. Viglotti, NY Slip Op 06823 (2d Dept. 2008)

The opinion is here.

Thursday, September 25, 2008

Service of process.

Practice point: The mere denial of receipt is insufficient to rebut the presumption of proper service created by a properly executed affidavit of service.

Case: Malik v. Noe, NY Slip Op 06809 (2d Dept. 2008)

The opinion is here.

Wednesday, September 24, 2008

Motion practice.

Practice point: No appeal lies from an order denying a motion for leave to reargue.

Case: Levy v. Kung Sit Huie, NY Slip Op 06807 (2d Dept. 2008)

The opinion is here.

Tuesday, September 23, 2008

Jury verdicts.

Practice point: A jury’s finding that a party was negligent but that the negligence was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the negligence and causality are so interwoven as to make it logically impossible to find one without the other. If the verdict can be reconciled with any reasonable view of the evidence, it will be presumed that the jury adopted that view.

Case: Jaffier v. Wilson, NY Slip Op 06802 (2d Dept. 2008)

The opinion is here.

Monday, September 22, 2008

Discovery.

Practice point: A plaintiff waives an objection to the adequacy and timeliness of disclosure by filing a note of issue and certificate of readiness prior to moving for the imposition of a discovery sanction, pursuant to CPLR 3126.

Case: Iscowitz v. County of Suffolk, NY Slip Op 06801 (2d Dept. 2008)

The opinion is here.

Friday, September 19, 2008

Assumption of the risk.

Practice point: A voluntary participant in a sport assumes the known risks normally associated with it. However, participants do not assume the risks of reckless or intentional conduct or concealed or unreasonably increased risks. While being struck in the head by a baseball is a known risk inherent in the sport, a plaintiff's deposition testimony, along with affidavits of plaintiff’s teammates, may raise a triable issue of fact as to whether an alleged cracked batter's helmet unreasonably increased the risk of injury.

Case: Fithian v. Sag Harbor Union Free School Dist., NY Slip Op 06798 (2d Dept. 2008)

The opinion is here.

Thursday, September 18, 2008

Motion practice.

Practice point: On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction; accept all facts as alleged in the pleading to be true; accord the plaintiff the benefit of every possible inference; and determine only whether the facts as alleged fit within any cognizable legal theory. However, bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference.

Case: Breytman v. Olinville Realty, LLC, NY Slip Op 06787 (2d Dept. 2008)

The opinion is here.

Wednesday, September 17, 2008

Contracts.

Practice point: A contracting party’s exercise of a discretionary right may breach the implied obligation of good faith and fair dealing if it frustrates the basic purpose of the agreement and deprives the other party of its benefits under the contract.

Case: C & E 608 Fifth Ave. Holding, Inc. v. Swiss Ctr., Inc., NY Slip Op 06743 (1st Dept. 2008)

The opinion is here.

Tuesday, September 16, 2008

Labor Law.

Practice point: A motion to dismiss a cause of action under
§ 240(1) and § 241(6) must be denied when the record does not establish, as a matter of law, that plaintiff's acts were the sole proximate cause of the accident. The court will consider evidence that the unsecured ladder on which the injured worker was standing collapsed, and that no other safety devices were provided.

Case: Vargas v. NYCTA, NY Slip Op 06740 (1st Dept. 2008)

The opinion is here.

Monday, September 15, 2008

Notice of Claim.

Practice point: A court may grant a petition for leave to serve an amended notice of claim, pursuant to General Municipal Law § 50-e(6), if the original notice of claim was not sworn to by or on behalf of the petitioner, pursuant to General Municipal Law § 50-e[2].

Case: Figgs v. County of Suffolk, NY Slip Op 06706 (2d Dept. 2008)

The opinion is here.

Friday, September 12, 2008

Indemnification.

Practice point: A party is entitled to contractual indemnification when the intention to indemnify is clearly implied from the language and purposes of the entire agreement and the surrounding circumstances.

Case: Torres v. LPE Land Dev. & Constr., Inc., NY Slip Op 06702 (2d Dept. 2008)

The opinion is here.

Thursday, September 11, 2008

Products liability.

Practice point: For a judgment as a matter of law in an action to recover for injuries allegedly caused by a defective product, a defendant must establish that the product performed as intended, or that plaintiff’s injuries likely were caused by something not attributable to a defect in the product’s design or manufacture.

Case: Calandra v. Crane Plumbing, NY Slip Op 06692 (2d Dept. 2008)

The opinion is here.

Wednesday, September 10, 2008

Employment Law.

Practice point: It is settled that, in deciding the issue of special employment, a putative special employer’s title, e.g., a managing agent, is not controlling. Instead, courts will look to the actual working relationship between the employer and the employee.

Case: Bautista v. Frankel Realty, Inc., NY Slip Op 06685 (1st Dept. 2008)

The opinion is here.

Tuesday, September 9, 2008

Motion practice.

Practice point: A summary judgment motion must include a complete set of pleadings and a supporting affidavit, pursuant to CPLR 3212(b).

Case: Zellner v. Tarnell, NY Slip Op 06558 (2d Dept. 2008)

The opinion is here.

Monday, September 8, 2008

Legal malpractice.

Practice point: The settlement of an underlying action, in and of itself, does not preclude a subsequent action for legal malpractice if the settlement was effectively compelled by the mistakes of counsel.

Case: Levitt & Assoc. v. Balkin, NY Slip Op 06640 (2d Dept. 2008)

The opinion is here.

Friday, September 5, 2008

Duty to warn.

Practice point: A landowner has a duty to warn of a dangerous condition where the hazard is latent.

Case: Roros v. Oliva, NY Slip Op 06637 (2d Dept. 2008)

The opinion is here.

Thursday, September 4, 2008

Municipal liability.

Practice point: A municipality is immune from liability arising from a claim that it negligently designed the sewerage system, but not from a claim that it negligently maintained the sewerage system, since this implicates conduct which is ministerial in nature.

Case: Moore v. City of Yonkers, NY Slip Op 06636 (2d Dept. 2008)

The opinion is here.

Wednesday, September 3, 2008

Summary judgment.

Practice point: A summary judgment motion may not be made more than 120 days after the filing of the note of issue, except with leave of court on good cause shown, pursuant to CPLR 3212(a).

Case: Lyons v. Donnelly, NY Slip Op 06633 (2d Dept. 2008)

The opinion is here.

Tuesday, September 2, 2008

Vicarious liability.

Practice point: A private attending physician’s affiliation with a hospital or other medical facility, not amounting to employment, is generally insufficient to impute a doctor's negligent conduct to the hospital or the medical facility.

Case: Keitel v. Kurtz, NY Slip Op 06632 (2d Dept. 2008)

The opinion is here .