Friday, May 29, 2009

Labor Law.

Practice point: Plaintiff's failure to plead an Industrial Code violation, other than in its opposition to a summary judgment motion, is not fatal to the § 241(6) cause of action.

Practitioners should note that when alleging a dangerous worksite condition, a plaintiff must demonstrate that defendant had control over the work site and actual or constructive notice.

Case: Fuchs v. Austin Mall Assoc., LLC, NY Slip Op 03863 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Partnership Law.

You will find another instructive case here.

Thursday, May 28, 2009

Conflict of laws.

Practice point: Where there is a true conflict between the laws of New Jersey and New York, and each jurisdiction favors its own domiciliary, the law of the place of the injury ordinarily controls.

Practitioners should note that the Court may apply the exception to this rule (1) if there were sufficient contacts of the parties, the incident, and New York, or (2) if enforcing New Jersey law would violate New York’s public policy, its Constitution or its judicial decisions.

Case: Begley v. City of New York, NY Slip Op 03856 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

You will find another instructive case here.

Wednesday, May 27, 2009

Legal malpractice.

Practice point: The suit to recover damages must be commenced within three years from accrual of the cause of action.

Practitioners should note that a legal malpractice cause of action accrues on the date the malpractice was committed, not when it was discovered.

Case: Byron Chem. Co., Inc. v. Groman, NY Slip Op 03465 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Conflict of laws.

You will find another instructive case here.

Tuesday, May 26, 2009

Family Law.

Practice point: There likely will be a change in custody only if, in the best interests of the child, the totality of the circumstances warrants a modification.

Practitioners should note that the court will consider factors such as the home environment and the custodial parent’s guidance; each parent’s ability to provide for the child's emotional and intellectual development; and each parent’s financial status as it relates to providing for the child.

Case: McGovern v. Lynch, NY Slip Op 03736 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

You will find another instructive case here.

Monday, May 25, 2009

Memorial Day.

Happy and safe Memorial Day to my fellow Vietnam veterans and to the men and women, of whatever service or stripe, who have served to keep us free.

Friday, May 22, 2009

Motion practice.

Practice point: To oppose plaintiff’s motion for leave to enter a default judgment for failing to timely serve an answer, defendant must demonstrate a justifiable excuse for its default and a meritorious defense.

Practitioners should note that defendant's insurance carrier's lengthy delay before defending the action, without more, is insufficient to establish a reasonable excuse.

Case: Leifer v. Pilgreen Corp., NY Slip Op 03872 (2d Dept. 2009)

The opinion is here.

Tuesday’s issue: Family Law.

You will find another instructive case here.

Thursday, May 21, 2009

Municipalities Law.

Practice point: An injured police officer looking to recover under General Municipal Law § 205-e must identify a statute or ordinance which defendant violated, and must plead facts from which it may be inferred that defendant's negligence directly or indirectly caused the injuries.

Practitioners should note that proving indirect cause does not require the same proof as proximate cause in common-law negligence, but a practical or reasonable connection between the statutory or regulatory violation and the injury.

Case: Cerati v. Berrios, NY Slip Op 03469 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

You will find another instructive case here.

Wednesday, May 20, 2009

Legal malpractice.

Practice point: A legal malpractice claim may result from giving faulty advice to a client.

Practitioners should note that an attorney may be liable for ignorance of the rules of practice; failure to comply with conditions precedent to suit; neglect to prosecute; or failure to conduct adequate research.

Case: Mortenson v. Shea, NY Slip 03611 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

You will find another instructive case here.

Tuesday, May 19, 2009

Motion practice.

Practice point: Plaintiff’s motion to vacate a conditional preclusion order will be denied after plaintiff failed to comply with three discovery orders, and did not offer a reasonable excuse for those failures or set forth the merits of the claim.

Practitioners should note that since counsel was present when the order was issued, plaintiff was on notice of it and is bound by its provisions.

Case: Ensley v. Snapper, Inc., NY Slip Op 03594 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

You will find another instructive case here.

Monday, May 18, 2009

Damages.

Practice point: If plaintiff wins his claim that he was induced by material misrepresentations to stay at defendant-law firm, he can get the difference between the signing bonus offered by the other firm and what he got from defendant for agreeing to stay.

Practitioners should note that plaintiff’s damages may not include anything based on employment going forward with the other firm, since that would be speculative.

Case: Hoeffner v. Orrick, Herrington & Sutcliffe LLP, NY Slip Op 03451 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

You will find another instructive case here.

Friday, May 15, 2009

Disabilities Law.

Practice point: Under New York and federal law, petitioner must prove a prima facie claim of discrimination, namely, that she has a disability; was job-qualified; and suffered an adverse employment action or was terminated under circumstances giving rise to an inference of discrimination.

Practitioners should note that the burden then shifts to the employer to rebut the presumption of discrimination by offering legitimate, independent and nondiscriminatory reasons for the employer’s decision. Petitioner is still entitled to prove that the employer’s stated reasons were merely a pretext for discrimination.

Case: Cuccia v. Martinez & Ritorto, PC, NY Slip Op 03444 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Damages.

You will find another instructive case here.

Thursday, May 14, 2009

Law of the case.

Practice point: The doctrine is not implicated when the court alters its own ruling and not a ruling by another court of coordinate jurisdiction.

Practitioners should note that every court retains continuing jurisdiction to reconsider its prior interlocutory orders, and may do so regardless of statutory time limits on motions to reargue.

Case: Kleinser v. Astarita, NY Slip 03401 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Disabilities Law.

You will find another instructive case here.

Wednesday, May 13, 2009

Comparative Negligence.

Practice point: A driver who lawfully enters an intersection may be partially at fault for an accident if the driver failed to use reasonable care to avoid a collision with another vehicle.

Practitioners should note that, even if a police officer went past a stop sign without activating the emergency lights or siren, it may still be found that, as a matter of law, the other driver’s negligence contributed to the accident.

Case: Franco v. Rizzo, NY Slip Op 03131 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Law of the case.

You will find another instructive case here.

Tuesday, May 12, 2009

Estates Law.

Practice point: When plaintiff alleges that defendant fraudulently concealed assets from the public administrator, res judicata does not prevent the recovery of assets improperly omitted from the estate settlement.

Practitioners should note that a Surrogate's Court decree settling an account does have conclusive effect on previously undisclosed and undiscovered assets.

Case: Lambert v. Sklar, NY Slip Op 03486 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Comparative negligence.

For another instructive case, click here.

Monday, May 11, 2009

Please look at our other blog.

Today marks the first post on a new blog, GETTING DOWN TO CASES. Characterized as a real people's court, with real disputes and real outcomes, the blog highlights cases with widespread applicability for practioners and laypersons alike.

Instead of offering practice points, GETTING DOWN TO CASES, lays out the facts of the case, specifies the exact nature of the dispute and explains the result.

Every court day, GETTING DOWN TO CASES will highlight a different case than you will find on NEW YORK LAW NOTES.

Thank you for your continued interest and support.

Assumption of the risk.

Practice point: Even if defendant were negligent in hitting a golf ball without knowing where the other players were, or that they were close enough to require a warning, it does not rise to the level of creating a dangerous condition over and above the usual dangers inherent in the sport.

Practitioners should note that a defendant unreasonably increases the inherent risks only where the conduct is without competitive purpose and constitutes a flagrant infraction unrelated to the usual method of play.

Case: Anand v. Kapoor, NY Slip 03110 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Estates Law.

Friday, May 8, 2009

Motion practice.

Practice point: Failure to timely file proof of service is a procedural irregularity which can be cured.

Practitioners should note that, absent an order permitting the late filing of the proof of service, it is a nullity and defendant’s time to answer never begins to run.

Case: Zareef v. Wong, NY Slip Op 02990 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Assumption of the risk.

Thursday, May 7, 2009

Notice of Claim.

Practice point: A notice of claim is not required to allege a civil rights violation.

Practitioners should note that, in New York, there is no cause of action for false arrest or false imprisonment sounding in negligence.

Case: Swinton v. City of New York, NY Slip Op 03054 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Wednesday, May 6, 2009

Labor Law.

Practice point: In a § 240(1) claim, there is summary judgment on liability because the unsecured A-frame ladder was inadequate to prevent plaintiff from falling after receiving an electric shock.

Practitioners should note that the fact that plaintiff had no recollection of falling does not change the result.

Case: Vukovich v. 1345 Fee, LLC, NY Slip Op 03026 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Notice of Claim.

Tuesday, May 5, 2009

Torts.

Practice point: General Obligations Law § 11-100 provides for a civil recovery against a person who knowingly provides alcohol to a minor, but only for parties injured by the intoxicated minor’s actions.

Practitioners should note that the statute does not provide a right of recovery for a minor’s injuries suffered as a result of the minor’s own intoxication.

Case: Rudden v. Bernstein, NY Slip Op 02983 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Monday, May 4, 2009

Motion practice.

Practice point: CPLR 3216 allows, but does not require, dismissal of an action based on plaintiff's unreasonable neglect to proceed.

Practitioners should note that the statute prohibits dismissal when plaintiff has shown a justifiable excuse for the delay and a meritorious cause of action.

Case: Klein v. MTA Long Is. Bus, NY Slip Op 02974 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Friday, May 1, 2009

Discovery.

Practice point: A municipality may decide which of its employees will appear for deposition, but a plaintiff may demand additional witnesses when (1) the employee already deposed had insufficient knowledge, and (2) there is a substantial likelihood that the person sought has material information which is necessary to prosecuting the case.

Practitioners should note that plaintiff will likely prevail by establishing that the witness he wanted to depose was the investigating officer who signed the injury report and who made the original records that were copied into the report.

Case: Filoramo v. City of New York, NY Slip Op 02969 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.