Friday, February 27, 2009

Labor Law.

Practice point: To establish liability under § 241(6), a plaintiff must demonstrate that defendant's violation of a specific rule or regulation was a proximate cause of the accident.

Practitioners should note that the violation does not establish defendant's liability as a matter of law, but constitutes evidence of negligence and thereby reserves, for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.

Case: Seaman v. Bellmore Fire Dist., NY Slip Op01099 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Discovery

Thursday, February 26, 2009

Legal malpractice.

Practice point: To establish a claim to recover damages, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages.

Practitioners should note that attorneys are free to select among reasonable courses of action in prosecuting a client’s case without thereby exposing themselves to liability for malpractice.

Case: Noone v. Stieglitz, NY Slip Op 01093 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Wednesday, February 25, 2009

Corporations.

Practice point: A party seeking to pierce the corporate veil must establish (1) that the owners exercised complete domination of the corporation in respect to the transaction attacked, and (2) that this domination was used to commit a fraud or wrong resulting in plaintiff's injury.

Practitioners should note that it also must be established that the defendants abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff such that a court of equity should intervene.

Case: Lawlor v. Hoffman, NY Slip Op 01088 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

Tuesday, February 24, 2009

Family Law.

Practice point: A child's derivative social security benefits may not serve as a credit against a parent’s child support obligation.

Practitioners should note that, although a dependent child's benefits are derived from the disabled parent's past employment, they are only intended to supplement existing resources.

Case: Matter of Jones v. Smith, NY Slip Op 01121 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Corporations.

Monday, February 23, 2009

Employment Law.

Practice point: A probationary employee may be terminated without a hearing and without a statement of reasons, absent a showing that the termination was for a constitutionally impermissible purpose, in bad faith or in violation of statutory or case law.

Practitioners should note that, in challenging the termination, a petitioner has the burden of demonstrating bad faith by competent evidence, not mere speculation.

Case: Matter of Bonanno v. Nassau County Civ. Serv. Commn., NY Slip Op 01114 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Family Law.

Friday, February 20, 2009

Employment Law.

Practice point: No tenured teacher may be disciplined or removed during a term of employment except for just cause, pursuant to Education Law § 3020.

Practitioners should note that the statute is the only means of disciplining a tenured teacher in New York State.

Case: Awaraka v. Board of Educ. of City of New York, NY Slip Op 00682 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Employment Law.

Thursday, February 19, 2009

Family Law.

Practice point: It is fundamental public policy in New York that parents are responsible for their children's support until age 21, pursuant to Family Court Act 413.

Practitioners should note that, under the doctrine of constructive emancipation, a child of employable age who abandons a noncustodial parent by refusing all contact and visitation may forfeit entitlement to support. If the parent causes a breakdown in communication, or has made no serious effort to contact the child and exercise visitation rights, the child will not be deemed to have abandoned the parent.

Case: Matter of Gold v. Fisher, NY Slip Op 00685 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Wednesday, February 18, 2009

Vehicle and Traffic Law.

Practice point: A motor vehicle licensee must notify the Commissioner within 10 days of a change of residence,pursuant to § 505(5).

Practitioners should note that a party who fails to comply with this provision is estopped from challenging the propriety of service made to the previous address of record.

Case: Walker v. Reyes, NY Slip Op 00678 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Family Law.

Tuesday, February 17, 2009

Assault.

Practice point: Once intentional offensive contact has been established, the actor is liable for assault and not negligence, since there is no such thing as a negligent assault. There is a one-year statute of limitations, pursuant to CPLR 215[3].

Practitioners should note that plaintiff's argument that defendant used excessive force does not transform the action into one for negligence.

Case: Smiley v. North Gen. Hosp., NY Slip Op 00630 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Vehicle and Traffic Law.

Monday, February 16, 2009

Contracts.

Practice point: To establish the existence of an enforceable agreement, a plaintiff must establish an offer, acceptance, consideration, mutual assent and an intention to be bound, pursuant to 22 NY Jur 2d, Contracts § 9.

Practitioners should note that the requisite meeting of the minds must include agreement on all essential terms.

Case: Kowalchuk v. Stroup, NY Slip Op 01014 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Assault.

Friday, February 13, 2009

Corporations.

Practice point: A corporation continues to exist after dissolution for the winding up of its affairs, and a dissolved corporation may sue or be sued on its obligations, including contractual obligations and contingent claims, until its affairs are fully adjusted.

Practitioners should note that a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified.

Case: Cava Constr. Co., Inc. v. Gealtec Remodeling Corp., NY Slip Op 00324 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Contracts.

Thursday, February 12, 2009

Motion practice.

Practice point: A motion to preclude testimony of plaintiff's treating physician will be denied, notwithstanding any failure or deficiency in providing disclosure pursuant to CPLR 3101(d)(1)(i), since that provision does not apply to treating physicians.

Practitioners should note that the testimony will be allowed even if the treating physician had not expressed an opinion regarding causation in a previously-exchanged medical report.

Case: Logan v. Roman, NY Slip Op 00509 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Corporations.

Wednesday, February 11, 2009

Sidewalks.

Practice point: Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land.

Practitioners should note, however, that liability may be imposed on the abutting landowner where the landowner either affirmatively created the dangerous condition, voluntarily but negligently made repairs to the sidewalk, created the dangerous condition through a special use of the sidewalk, or violated a statute or ordinance expressly imposing liability on the abutting landowner for a failure to maintain the sidewalk.

Case: James v. Blackmon, NY Slip Op 00507 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Tuesday, February 10, 2009

Adverse possession.

Practice point: To obtain title, a party must prove by clear and convincing evidence the common-law requirements: (1) that the possession was hostile and under claim of right; (2) that it was actual; (3) that it was open and notorious; (4) that it was exclusive; and (5) that it was continuous for the statutory period of 10 years.

Practitioners should note that, when the claim is not founded on a written instrument, the possessor must also establish that the disputed property was either "usually cultivated or improved" or "protected by a substantial inclosure," pursuant to RPAPL 522.

Case: Goldschmidt v. Ford St., LLC, NY Slip Op 00505 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Sidewalks.

Monday, February 9, 2009

Emergency vehicles.

Practice point: Emergency vehicle drivers have a qualified privilege to disregard certain traffic laws while on an emergency call, pursuant to Vehicle and Traffic Law § 1104[b][1]-[4]. There is no civil liability to an injured third party unless the officer acted in reckless disregard for the safety of others, pursuant to § 1104[e].

Practitioners should note that this "reckless disregard" standard requires proof that the officer intentionally committed an unreasonable act in disregard of a known or obvious risk so great as to make it highly probable that harm would result.

Case: Corallo v. Martino, NY Slip Op 00496 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Adverse possession.

Friday, February 6, 2009

Corporations.

Practice point: A corporate officer who participates in the commission of a tort may be held individually liable, regardless of whether the officer acted on behalf of the corporation in the course of official duties and regardless of whether the corporate veil is pierced.

Practitioners should note that this "commission of a tort" doctrine permits personal liability to be imposed on a corporate officer for misfeasance or malfeasance, which are affirmative tortious acts. Personal liability cannot be imposed on a corporate officer for nonfeasance, which is a failure to act.

Case: Peguero v. 601 Realty Corp., NY Slip Op 00443 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Emergency vehicles.

Thursday, February 5, 2009

Evidence.

Practice point: The Supreme Court has broad discretion in determining the materiality and relevance of proffered evidence.

Practitioners should note that the court will decline to admit a copy of an order in underlying litigation as cumulative to testimony already received concerning the outcome of that litigation.

Case: Caplan v. Tofel, NY Slip Op 00323 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Corporations.

Wednesday, February 4, 2009

Res ipsa loquitur.

Practice point: The doctrine is appropriate in a medical malpractice case when the injury is unexplained, the injury site is remote from the treatment site and plaintiff was anaesthetized.

Practitioners should note that a plaintiff must show only enough evidence supporting these three conditions to afford a rational basis for concluding that it is more likely than not that the injury was caused by defendant's negligence.

Case: Antoniato v. Long Is. Jewish Med. Ctr., NY Slip Op 00319 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Evidence.

Tuesday, February 3, 2009

Employment Law.

Practice point: If a collective bargaining agreement specifies a grievance procedure, a covered employee may not sue the employer directly for breach of the agreement but must proceed, through the union, according to the agreement’s terms.

Practitioners should note that this rule equally applies to employees who challenge their termination based on the employer's alleged breach of the collective bargaining agreement.

Case: Ambrosino v. Village of Bronxville, NY Slip Op 00318 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Res ipsa loquitur.

Monday, February 2, 2009

Service of process.

Practice point: If served by means other than personal delivery, a person may defend the action within one year after learning of entry of the judgment on a showing that notice of the summons was not personally received in time to defend and that there is a meritorious defense, pursuant to CPLR 317.

Practitioners should note that, absent such a showing, vacating the judgment requires a reasonable excuse for the default and a potentially meritorious defense, pursuant to CPLR 5015(a)(1).

Case: M. R. v. 2526 Valentine LLC, NY Slip Op 00300 (1st Dept. 2009)

The opinion is here.

Tomorrow's issue: Employment Law.