Wednesday, September 30, 2009

Res judicata.

Practice point: The doctrine precludes the relitigation of issues that could have or should have been raised in a prior proceeding stemming from the same factual grouping or transaction.

Practitioners should note that, where the same foundational facts serve as a predicate for two proceedings, differences in legal theory or relief sought do not create a separate cause of action.

Case: Greaves v. Ortiz, NY Slip Op 06508 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Tuesday, September 29, 2009

Remedies.

Practice point: A preliminary injunction is not available to preserve assets as security for a potential money judgment even if a party intends to frustrate a judgment by making it uncollectible.

Practitioners should note that a general creditor might seek an attachment if the debtor is looking to transfer assets.

Case: Fatima v. Twenty Seven-Twenty Four Realty Corp., NY Slip Op 06503 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Res judicata.

Monday, September 28, 2009

Torts.

Practice point: A possessor of real property has a duty to maintain reasonable security measures to protect those lawfully on the premises from the foreseeable criminal acts of third parties.

Practitioners should note that foreseeability requires that the criminal conduct must be reasonably predictable based on prior occurrences of a similar kind at a sufficiently proximate location.

Case: Bryan v. Crobar, NY Slip Op 06394 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Remedies.

Friday, September 25, 2009

Motion practice.

Practice point: An action may be dismissed for a delay in its prosecution, pursuant to CPLR 3216[a].

Practitioners should note that, for such a dismissal, there are three requirements: (1) issue must have been joined, (2) one year must have elapsed following joinder, and (3) there must have been a written demand served by registered or certified mail requiring that a note of issue be served and filed within ninety days, pursuant to CPLR 3216[b].

Case: Michaels v. Sunrise Bldg. & Remodeling, Inc., NY Slip Op 06411 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Torts.

Thursday, September 24, 2009

The "danger invites rescue" doctrine.

Practice point: There is no cause of action in negligence against a rescuer who was rushing into danger to save someone from an imminent, life-threatening peril.

Practitioners should note that the doctrine works against a party whose culpable act has put someone in an imminent peril which invites a third person to come to the rescue.

Case: Flederbach v. Lennett, NY Slip Op 06402 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Wednesday, September 23, 2009

Employment Law.

Practice point: New York does not recognize a cause of action in tort for wrongful termination.

Practitioners should note that, absent an express agreement establishing that it is for a fixed duration, the employment is presumed to be at-will and can be freely terminated by either party at any time, for any reason, or for no reason at all.

Case: Daub v. Future Tech Enter., Inc., NY Slip Op 06397 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: The “danger invites rescue” doctrine.

Tuesday, September 22, 2009

Vehicle and Traffic Law.

Practice point: To establish liability pursuant to § 388(1), a plaintiff must show negligence in the use or operation of the vehicle, and that the negligence was a cause of the injury.

Practitioners should note that if intentional offensive contact is established, the actor is liable for battery, not negligence.

Case: Ciminello v. Sullivan, NY Slip Op 06396 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Monday, September 21, 2009

Labor Law.

Practice point: For purposes of § 240(1) liability, an airplane is a structure.

Practitioners should note that the City may be liable as fee owner, even though it leased the premises to the Port Authority, which in turn leased the premises to an airline.

Case: Wong v. City of New York, NY Slip Op 06395 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Vehicle and Traffic Law.

Friday, September 18, 2009

Torts.

Practice point: An arm's length borrower-lender relationship is not confidential or fiduciary in nature, and does not support a cause of action for negligent misrepresentation.

Practitioners should note that liability for negligent misrepresentation will be imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party.

Case: Dobroshi v. Bank of Am., N.A., NY Slip Op 06382 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

Thursday, September 17, 2009

Products liability.

Practice point: A manufacturer has a duty to warn against latent dangers resulting from reasonably foreseeable uses of its product.

Practitioners should note that, where a product is manufactured so as to allow its use without a safety feature, a plaintiff may recover for injuries suffered as a result of removing the safety feature.

Case: Stewart v. Honeywell Intl. Inc., NY Slip Op 06365 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Wednesday, September 16, 2009

Torts.

Practice point: An action to recover for personal injury or wrongful death against a doctor or hospital may be based either on simple negligence principles or on the narrower medical malpractice standard.

Practitioners should note that negligence principles apply where the alleged act may be determined by the fact-trier based on common knowledge. Where the issue involves directions given or treatment administered, consideration must be given to the professional skill and judgment of the practitioner or facility, and medical malpractice principles apply.

Case: Friedmann v. New York Hospital-Cornell Med. Ctr., NY Slip Op 06362 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Products liability.

Tuesday, September 15, 2009

Contracts.

Practice point: The rule of accord and satisfaction is generally accepted as a legitimate and expeditious means of settling contract disputes.

Practitioners should note that the affirmative defense requires a disputed claim that the parties resolved through a new contract discharging their obligations under the original contract.

Case: Profex, Inc. v. Town of Fishkill, NY Slip Op 06320 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Monday, September 14, 2009

Municipalities Law.

Practice point: Under Highway Law § 139(2), a county may not be subjected to liability for injuries caused by an improperly maintained highway unless (1) it has received prior written notice of the defect, or (2) a statutory exception to the notice requirement applies.

Practitioners should note that, as a matter of law, constructive notice of a defect, except in the case of snow and ice, is an exception to the prior written notice requirement.

Case: Napolitano v. Suffolk County Dept. of Pub. Works, NY Slip Op 06319 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Friday, September 11, 2009

Remedies.

A plaintiff is not precluded from maintaining an action simply because plaintiff received payment from its insurance carrier.

Practitioners should note that plaintiff's receipt of an insurance payment may be relevant as a possible setoff against the damages award, pursuant to CPLR 4545[c].

Case: Hopper v. McCollum, NY Slip Op 06315 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

Thursday, September 10, 2009

Motion practice.

Practice point: The filing of a supplemental summons and complaint commences an action against a newly-joined defendant or a third-party defendant, pursuant to CPLR 305[a].

Practitioners should note that a claim asserted against a defendant in an amended filing may relate back to claims previously asserted against a codefendant for statute of limitations purposes where the two defendants are united in interest, pursuant to CPLR 203[c].

Case: Benn v. Losquadro Ice Co., Inc., NY Slip Op 06307 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Remedies.

Wednesday, September 9, 2009

Municipalities Law.

Practice point: The markings on a Big Apple map must give notice of the particular defect that allegedly caused the injury. Markings showing a sidewalk crack do not give notice of a hole at the end of that crack.

Practitioners should note that, on a motion for summary judgment, where the City establishes that it lacked prior written notice, the burden shifts to plaintiff to demonstrate the applicability of one of two recognized exceptions to the requirement of written notice: (1) that the municipality affirmatively created the defect through an act of negligence, or (2) that a special use resulted in a special benefit to the municipality.

Case: Ortiz v. City of New York, NY Slip Op 06299 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Tuesday, September 8, 2009

Motion practice.

Practice point: Where there is an inconsistency between an order and the decision on which it is based, the decision controls.

Practitioners should note that the order is not rendered a nullity by this inconsistency unless it affects a substantial right of a party, pursuant to CPLR 5019[a].

Case: Matter of Stewart, NY Slip Op 06254 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Friday, September 4, 2009

Motion practice.

Practice point: On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, give plaintiff the benefit of every possible favorable inference, and determine only whether the allegations fit within any cognizable legal theory.

Practitioners should note that while affidavits may be considered, if the motion has not been converted to a CPLR 3212 motion for summary judgment, affidavits are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims.

Case: Mathurin v. Lost & Found Recovery, LLC, NY Slip Op 06240 (2d Dept. 2009)

The opinion is here.

Tuesday’s issue: Motion practice.

Thursday, September 3, 2009

Torts.

Practice point: To demonstrate a lack of informed consent, a plaintiff must establish (1) that defendant failed to disclose the material risks, benefits and alternatives to the surgery which a reasonable medical practitioner would have disclosed, and (2) that a reasonably prudent person in plaintiff's position would not have undergone the surgery if he or she had been fully informed, pursuant to Public Health Law § 2805-d[1], [3].

Practitioners should note that informed consent does not require disclosure of the qualifications of personnel providing the professional treatment, pursuant to Public Health Law § 2805-d.

Case: Johnson v. Jacobwitz, NY Slip Op 06236 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Wednesday, September 2, 2009

Property.

Practice point: Partition is an equitable remedy and Supreme Court has the authority to adjust the parties’ rights so that each receives the proper share of the property and its benefits.

Practitioners should note that a tenant’s expenditures in excess
of tenant’s obligations may be charged against the cotenant’s interest. These expenditures include down payments and mortgage payments.

Case: Brady v. Varrone, NY Slip Op 06228 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Tuesday, September 1, 2009

Municipalities Law.

Practice point: As a general rule, a municipal defendant is immune from liability for conduct involving the exercise of discretion and reasoned judgment.

Practitioners should note that the judgment error rule does not immunize municipal defendants when an innocent bystander is injured by a police officer’s action in an altercation involving a violation of department guidelines governing the use of deadly force.

Case: Johnson v. City of New York, NY Slip Op 06225 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Property.