Monday, August 31, 2009

Labor Law.

Practice point: For summary judgment in a § 240(1) action, a plaintiff must establish that there was a violation of the statute, and that the violation was the proximate cause of the injuries.

Practitioners should note that there is no liability if adequate safety devices are provided and the worker either chooses not to use them or misuses them.

Case: Cherry v. Time Warner, Inc., NY Slip Op 06226 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Friday, August 28, 2009

Municipalities Law.

Practice point: Generally, a plaintiff who has failed to comply with a demand for a hearing pursuant to General Municipal Law 50-h(2) is precluded from commencing an action against a municipality.

Practitioners should note that the complaint should not be dismissed where the hearing has been postponed indefinitely beyond the statutory 90-day period, and the municipality has not rescheduled the hearing.

Case: Vargas v. City of Yonkers, NY Slip Op 06176 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

Thursday, August 27, 2009

Trusts and Estates.

Practice point: To make a valid inter vivos gift, there must be
the intent to transfer; there must be delivery, either actual or constructive; and there must be acceptance by the donee.

Practitioners should note that the law will presume an acceptance when the gift is of value.

Case: Shybunko v. Geodesic Homes, Inc., NY Slip Op 06174 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Wednesday, August 26, 2009

Motion practice.

Practice point: Where evidentiary material is submitted and considered on a motion to dismiss, pursuant to CPLR 3211(a)(7), the court must determine whether plaintiff has a cause of action, not whether plaintiff has stated one.

Practitioners should note that the motion should be denied unless it has been shown that a material fact as claimed by plaintiff is not a fact at all, and unless it can be said that there is no significant dispute regarding it.

Case: Shapiro v. Jackel, NY Slip Op 06171 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Trusts and Estates.

Tuesday, August 25, 2009

Attorney-client relationships.

Practice point: A lawyer may withdraw from representation if the client's conduct makes it unreasonably difficult for the lawyer to be effective, pursuant to Code of Professional Responsibility DR 2-110[c][1][iv]; 22 NYCRR 1200.15(c)(1)(iv).

Practitioners should note that a lawyer may withdraw if the client deliberately disregards an agreement or obligation as to expenses or fees, pursuant to Code of Professional Responsibility DR 2-110[C][1][f]; 22 NYCRR 1200.15(c)(1)(vi).

Case: Misek-Falkoff v. Metropolitan Tr. Auth., NY Slip Op 06168 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Monday, August 24, 2009

Evidence.

Practice point: The Frye rule is that expert testimony based on a scientific principle or procedure is admissible if the principle or procedure has gained general acceptance in its specific field.

Practitioners should note Frye is not concerned with the reliability of an expert's conclusions, but only with whether the expert's deductions are based on principles or procedures that are sufficiently established to have gained general acceptance as reliable.

Case: Lipschitz v. Stein, NY Slip Op 06167 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Attorney-client relationships.

Friday, August 21, 2009

Appellate practice.

Practice point: It is appellant’s responsibility to assemble the necessary and proper record.

Practitioners should note that the record must contain all relevant papers that were before the Supreme Court.

Case: Keita v. United Parcel Service, NY Slip Op 06165 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Evidence

Thursday, August 20, 2009

Motion practice.

Practice point: On a motion for summary judgment in a medical malpractice action, defendant must establish the absence of any departure from good and accepted medical practice, or that plaintiff was not injured thereby.

Practitioners should note that, in opposition, plaintiff must submit a physician's affidavit attesting to defendant's departure from accepted practice, and that the departure was a competent producing cause of the injury. Conclusory allegations which are unsupported by competent evidence are insufficient to defeat summary judgment.

Case: Flanagan v. Catskill Regional Medical Center, NY Slip Op 06161 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Appellate practice.

Wednesday, August 19, 2009

Motion practice.

Practice point: Pursuant to CPLR 3212(f), a trial court has the discretion to deny a motion for summary judgment or to order a continuance if facts essential to an opposition may exist, but cannot then be stated.

Practitioners should note that there must be a likelihood of discovery leading to such evidence, and the party opposing the motion must allege the existence of proof in admissible form which presents a triable issue of fact or an acceptable excuse for the absence of first-hand knowledge.

Case: Desena v. City of New York, NY Slip Op 06160 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Tuesday, August 18, 2009

Trusts and Estates.

Practice point: Pursuant to Estates, Powers and Trusts Law 11-3.2(b), a personal representative of the decedent may bring an action for injury to decedent’s person or property.

Practitioners should note that 13-3.5(a)(1) provides that a foreign decedent’s representative bringing an action in New York must, within 10 days of commencing the action, file a copy of the representative’s letters, authenticated as required by CPLR 4542.

Case: Schoeps v. Andrew Lloyd Webber Art Foundation, NY Slip Op 06155 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Monday, August 17, 2009

Motion practice.

Practice point: To survive a pre-answer motion to dismiss pursuant to CPLR 3211(a)(7), plaintiff must plead allegations from which damages attributable to defendant's conduct may reasonably be inferred.

Practitioners should note that, at this early stage of the proceeding, plaintiff is not obliged to show that damages actually were sustained.

Case: Fielding v. Kupferman, NY Slip Op 06151 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Trusts and Estates.

Friday, August 14, 2009

Comparative negligence.

Practice point: A person who accepts a ride in a vehicle, with knowledge that the operator may be intoxicated, takes a risk that injury might occur.

Practitioners should note that the risk will be considered in the analysis of comparative negligence as between the vehicle’s operator and the passenger.

Case: Strychalski v. Dailey, NY Slip Op 06134 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Thursday, August 13, 2009

Arbitration.

Practice point: Arbitration is favored in New York State as a means of resolving disputes, and courts will interfere as little as possible with agreements to arbitrate.

Practitioners should note that a party will not be compelled to arbitrate absent evidence that the parties expressly agreed to arbitrate their disputes.

Case: Shah v. Monpat Constr., Inc., NY Slip Op 06132 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Comparative negligence.

Wednesday, August 12, 2009

Motion practice.

Practice point: A defendant seeking to vacate its default in appearing or answering must offer a reasonable excuse for the default and demonstrate a meritorious defense to the complaint.

Practitioners should note that an excuse that the insurer took more than one year in providing a defense is insufficient.

Case: Kramer v. Oil Services, Inc., NY Slip Op 06121 (2d Dept. 2009).

The opinion is here.

Tomorrow’s issue: Arbitration.

Tuesday, August 11, 2009

Notice of claim.

Practice point: Filing a police accident report with the New York City Department of Transportation does not constitute notice of claim to the City.

Practitioners should note that law office failure, standing alone, is insufficient to justify serving an unauthorized late notice of claim five months after the expiration of the 90-day statutory period of General Municipal Law § 50-e.

Case: Gobardhan v. City of New York, NY Slip Op 05961 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Monday, August 10, 2009

Contracts.

Practice point: If a contract is not signed by the party to be charged with its enforcement, it is void as against that party, pursuant to the statute of frauds.

Practitioners should note that to prove an enforceable oral contract under the doctrine of part performance, there must be an act that is unequivocally referable to the alleged contract.

Case: Singh v. Kur, NY Slip Op 05957 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Notice of claim.

Friday, August 7, 2009

Motion practice.

Practice point: In an action brought by an out-of-state resident, defendant may move for an order directing plaintiff to post security during the pendency of the action so that defendant, if successful, will be able to collect its costs, pursuant to CPLR 8501[a].

Practitioners should note that, in counties outside of the City of New York, the statutory amount is $250, pursuant to CPLR 8503.

Case: Halloway v. KRNH, Inc., NY Slip Op 06003 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Contracts.

Thursday, August 6, 2009

Legal malpractice.

Practice point: To support the cause of action, the factual allegations must establish the necessary element of causation, namely, that "but for" the alleged acts or omissions, plaintiff would not have incurred any damages.

Practitioners should note that the mere failure to disclose malpractice does not give rise to a cause of action alleging fraud or deceit, apart from the underlying malpractice cause of action.

Case: Reichenbaum v. Cilmi, NY Slip Op 05954 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Wednesday, August 5, 2009

Motion practice.

Practice point: A motion for leave to renew must be based on new facts that would change the prior determination, pursuant to CPLR 221[e][2]), and must include a reasonable justification for the failure to present the facts on the prior motion, pursuant to CPLR 2221[e][3].

Practitioners should note that a motion to reargue is within the sound discretion of the court, and may be granted on a showing that the court overlooked or misapprehended the facts or law, or otherwise mistakenly arrived at its earlier decision.

Case: Barnett v. Smith, NY Slip Op 05939 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

Tuesday, August 4, 2009

Motion practice.

Practice point: An order that was issued sua sponte is not appealable as of right.

Practitioners should note that a motion is a request for an order, pursuant to CPLR 2211, and a letter simply requesting a telephone conference with the court does not serve as a notice of motion.

Case: Reyes v. Sequeira, NY Slip Op 05986 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Monday, August 3, 2009

Real property.

Practice point: A contract for sale is void unless it is in writing and subscribed by the party to be charged or a lawful agent, pursuant to General Obligations Law § 5-703(2).

Practitioners should note that an agent’s apparent authority, if unwritten, does not satisfy the statute of frauds.

Case: Leist v. Tugendhaft, NY Slip Op 05950 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.