Wednesday, December 31, 2008

Statute of limitations.

Practice point: Parties to a contract may agree to a time-limit for commencing an action which is less than otherwise provided in CPLR 201.

Practitioners should note that in moving to dismiss a complaint as time-barred, pursuant to CPLR 3211(a)(5), there must be a showing that defendant engaged in conduct that induced plaintiff to postpone bringing suit.

Case: Dimmick v. New York Prop. Ins. Underwriting Assn., NY Slip Op 09745 (2d Dept. 2008)

The opinion is here.

Friday's issue: Promissory notes.

Tuesday, December 30, 2008

Constructive notice.

Practice point: To meet its initial burden on the issue of lack of constructive notice in a slip and fall action, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.

Practitioners should note that defendant must offer more than deposition testimony referring to the typical cleaning regimen.

Case: Birnbaum v. New York Racing Assn., Inc., NY Slip Op 09741 (2d Dept. 2008)

The opinion is here.

Tomorrow's issue: Statute of limitations.

Monday, December 29, 2008

Attorneys' fees.

Practice point: Judiciary Law § 474 sets forth the general rule, namely, that compensation is governed by the attorney-client agreement, express or implied, which is otherwise not restrained by law.

Practitioners should note that, pursuant to CPLR 1207, if the action involves an infant, a judicially-declared incompetent or a conservatee, a court must approve the attorneys’ fees which are specified in a settlement.

Case: White v. Daimler Chrysler Corp., NY Slip Op 09592 (2d Dept. 2008)

The opinion is here.

Tomorrow's issue: Constructive notice.

Friday, December 26, 2008

Privileged communications.

Practice point: A qualified privilege extends to a communication on a subject in which both persons have an interest.

Practitioners should note that the qualified privilege is defeated where a plaintiff can demonstrate that defendant’s communication was not made in good faith but was motivated solely by malice.

Case: Phelan v. Huntington Tri-Village Little League, Inc., NY Slip Op 09576 (2d Dept. 2008)

The opinion is here.

Monday's issue: Attorneys' fees.

Thursday, December 25, 2008

Merry Christmas.

Courts are closed because of the Christmas holiday and so there is no post today. Thank you for your support throughout the year and best wishes for a blessed Christmas season.

Courts reopen tomorrow and there will be a new post.

Tomorrow's issue: Privileged communications.

Wednesday, December 24, 2008

Personal jurisdiction.

Practice point: Failure to serve process leaves the court without personal jurisdiction over a defendant, and all subsequent proceedings are thereby rendered null and void.

Practitioners should note that, pursuant to CPLR 5015(a)(4), a default judgment must be vacated once a movant demonstrates the lack of personal jurisdiction.

Case: Hossain v. Fab Cab Corp., NY Slip Op 09561 (2d Dept. 2008)

The opinion is here.

Personal jurisdiction.

Practice point: Failure to serve process leaves the court without personal jurisdiction over a defendant, and all subsequent proceedings are thereby rendered null and void.

Practitioners should note that, pursuant to CPLR 5015(a)(4), a default judgment must be vacated once a movant demonstrates lack of personal jurisdiction.

Case: Hossain v. Fab Cab Corp., NY Slip Op 09561 (2d Dept. 2008)

The opinion is here.

Tuesday, December 23, 2008

Labor Law.

Practice point: Painting is a covered activity, pursuant to § 240(1), and, in order to be actionable, it need not be incidental to other specified activities such as construction, repair or alteration.

Practitioners should note that, by itself, a fall from a ladder is insufficient to impose statutory liability. There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing plaintiff's injuries.

Case: Artoglou v. Gene Scappy Realty Corp., NY Slip Op 09542 (2d Dept. 2008)

The opinion is here.

Monday, December 22, 2008

Equitable estoppel.

Practice point: To estop the assertion of a statute of limitations defense, plaintiff must establish by clear and convincing evidence that the action was not timely commenced because of defendant’s fraud, deception or misrepresentation.

Practitioners should note that the statute will not be tolled when plaintiff failed to plead either fraud or fraudulent concealment, but only alleged medical malpractice based on defendant's failure to appreciate the information contained in a radiology report.

Case: Bayuk v. Gilbert, NY Slip Op 09460 (1st Dept. 2008)

The opinion is here.

Friday, December 19, 2008

Corporations.

Practice point: A corporation must appear by an attorney, pursuant to CPLR 321(a).

Practitioners should note that, to avoid the statutory requirement, the corporation may assign its claims to an appropriate individual plaintiff.

Case: Kinlay v. Henley, NY Slip Op 09450 (1st Dept. 2008)

The opinion is here.

Thursday, December 18, 2008

Negligence.

Practice point: Deposition testimony that the floor on which plaintiff slipped was "very shiny" and "overwaxed," without more, does not support an inference of negligent waxing or polishing.

Practitioners should note that no inference of negligence can be drawn from the fact that, after plaintiff fell, a carpet and a warning sign were placed on the floor.

Case: Purcell v. York Bldg. Maintenance Corp., NY Slip Op 09439 (1st Dept. 2008)

The opinion is here.

Wednesday, December 17, 2008

Right of way.

Practice point: A driver facing a red flashing light must stop before entering the intersection, pursuant to Vehicle and Traffic Law § 1113(a), and then proceed according to the rules applicable after stopping at a stop sign. A driver who fails to yield the right-of-way after stopping at a stop sign is in violation of § 1142(a), and is negligent as a matter of law.

Practitioners should note that a driver with the right-of-way is entitled to anticipate that others will obey the applicable traffic laws and yield the right-of-way.

Case: Melendez v. County of Nassau, NY Slip Op 09367 (2d Dept. 2008)

The opinion is here.

Tuesday, December 16, 2008

Trivial defects.

Practice point: Injuries resulting from trivial defects are not actionable.

Practitioners should note that there is no 'minimal dimension test' or per se rule that, in order to be actionable, a defect must be of a certain height or depth. Instead, a court will consider the width, depth, elevation, irregularity and appearance of the defect, along with the time, place and circumstance of the injury.

Case: Berry v. Rocking Horse Ranch Corp., NY Slip Op 09342 (2d Dept. 2008)

The opinion is here.

Monday, December 15, 2008

Pleadings.

Practice point: An answer to an amended complaint served pursuant to CPLR 3025(d) constitutes an original answer to the amended complaint, and affirmative defenses raised in that answer are not limited to those which had been asserted in the original answer.

Practitioners should note that a plaintiff cannot avoid the application of this rule by simply denominating a pleading as supplemental when, in fact, it asserts new injuries and a new category of damages, and which, therefore, is an amended pleading.

Practitioners should further note that a supplemental complaint does not supersede the original complaint, but is in addition to it, and the original answer remains in effect. In its answer to the supplemental complaint, a defendant may not assert a new affirmative defense unless it is responsive to the new matter alleged.

Case: Mendrzycki v. Cricchio, NY Slip Op 09044 (2d Dept. 2008)

The opinion is here.

Friday, December 12, 2008

Rear-end collisions.

Practice point: A rear-end collision with a stopped or braking vehicle creates a prima facie case of the moving vehicle driver’s negligence, and requires the driver to offer an adequate non-negligent explanation for the accident.

Practitioners should note that, standing alone, a claim that the driver ahead stopped suddenly does not defeat the presumption of negligence. However, evidence that a vehicle was rear-ended and propelled into the stopped vehicle in front of it may provide a sufficient non-negligent explanation, pursuant to Malak v. Wynder, NY Slip Op 09043 (2d Dept. 2008).

Case: Jumandeo v. Franks, NY Slip Op 09035 (2d Dept. 2008)

The opinion is here.

Thursday, December 11, 2008

Privileged communications.

Practice point: An attorney may reveal confidences or secrets when their publication is necessary to defend against an accusation of wrongful conduct, pursuant to DR 4-101(C).

Practitioners should note that the rule may apply to allegations of malpractice and does not require an allegation of conduct rising to the level of criminality, pursuant to Restatement [Third] of Law Governing Lawyers § 64, Comment c.

Case: Hélie v. McDermott, Will & Emery, NY Slip Op 09289 (1st Dept. 2008)

The opinion is here.

Wednesday, December 10, 2008

Statute of limitations.

Practice point: The statute of limitations cannot be asserted sua sponte by the court as a basis for denying an unopposed motion for a default judgment.

Practitioners should note that the statute of limitations must be pleaded, if at all, as an affirmative defense.

Case: Orix Fin. Servs., Inc. v. Haynes, NY Slip Op 09270 (1st Dept. 2008)

The opinion is here.

Tuesday, December 9, 2008

Cooperatives Law.

Practice point: Absent evidence of self-dealing, fraud or some other breach of fiduciary duty, a shareholder will not defeat the business judgment rule in disputing a coop board's decisions regarding repairs to the building.

Practitioners should note that, by refusing to pay assessments for major structural repairs, a plaintiff waives the claim for breach of the covenant of quiet enjoyment.

Case: Parker v. Marglin, NY Slip Op 09266 (1st Dept. 2008)

The opinion is here.

Monday, December 8, 2008

Disclosure.

Practice point: Pursuant to CPLR 3101(a), there must be full disclosure of whatever is material and necessary in the prosecution or defense of an action.

Practitioners should note that "material and necessary" is interpreted liberally to require disclosure of anything which bears on the controversy and which will help to sharpen the issues and reduce delays. The standard is usefulness and reason.

Case: Friel v. Papa, NY Slip Op 09028 (2d Dept. 2008)

The opinion is here.

Friday, December 5, 2008

Attorneys as parties to an action.

Practice point: An attorney who is a party to an action must support a pleading with an affidavit, notwithstanding CPLR 2106, which otherwise allows an attorney to submit an affirmation.

Practitioners should note that this deficiency will be fatal to the pleading.

Case: Finger v. Saal, NY Slip Op 09027 (2d Dept. 2008)

The opinion is here.

Thursday, December 4, 2008

Motion practice.

Practice point: A plaintiff who pleads the defense of failure to state a cause of action will not win dismissal in the absence of a motion.

Practitioners should note that this motion may be made at any time.

Case: Butler v. Catinella, NY Slip Op 09018 (2d Dept. 2008)

The opinion is here.

Wednesday, December 3, 2008

Construing insurance policies.

Practice point: If the policy on its face is reasonably susceptible of only one meaning, a court is not free to alter the agreement. If there is any ambiguity, however, it must be construed in favor of the insured and against the insurer.

Practitioners should note that for an insurer to prevail on its interpretation of an ambiguous term, the insurer must demonstrate, in addition to reasonability, that its interpretation is the only fair one.

Case: Antoine v. City of New York, NY Slip Op 09010 (2d Dept. 2008)

The opinion is here.

Tuesday, December 2, 2008

Disclosure.

Practice point: While CPLR 3101(a) provides for full disclosure of whatever is material and necessary to prosecute an action, unlimited disclosure is not permitted.

Practitioners should note that, pursuant to CPLR 3103(a), a court may deny, limit, condition or regulate the use of any disclosure device so as to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person.

Case: Lacqua v. Staten Is. Univ. Hosp., NY Slip Op 08712 (2d Dept. 2008)

The opinion is here.

Monday, December 1, 2008

Snow and ice removal.

Practice point: An owner of property abutting a public sidewalk is not liable for pedestrian injuries arising out of the failure to remove snow and ice which naturally accumulates on the sidewalk, unless a statute or ordinance specifically imposes tort liability for not doing so.

Practitioners should note that, even absent such a statute or ordinance, there might be liability if the owner, or someone acting on the owner’s behalf, undertakes snow and ice removal efforts which make the naturally-occurring conditions more hazardous. The failure to remove all the snow and ice from the sidewalk does not constitute negligence.

Case: Cruz v. County of Nassau, NY Slip Op 08699 (2d Dept. 2008)

The opinion is here.