Tuesday, August 31, 2010

Mental Hygiene Law.

Practice point: Involuntary admission for psychiatric treatment requires clear and convincing evidence that the patient poses a substantial threat of physical harm to himself or others.

Students should note that the hospital's director must forthwith notify Mental Hygiene Legal Services, and the patient is entitled to a hearing within five days of requesting it.

Case: Rueda v. Charmaine D., NY Slip Op 06393 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Monday, August 30, 2010

Motion practice.

Practice point: Courts will liberally allow persons to intervene in actions where they have a bona fide interest in an issue.

Students should note that distinctions between intervention as of right and discretionary intervention are not shaply applied.

Case: Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, NY Slip Op 06401 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Mental Hygiene Law.

Friday, August 27, 2010

Trial practice.

Practice point: The standard for determining if a jury verdict is contrary to the weight of the evidence is whether the evidence so favors the unsuccessful party that it could not have been reached on any fair interpretation.

Students should note that if the verdict can be reconciled with a reasonable interpretation of the evidence, the successful party is entitled to the presumption that the jury adopted that view.

Case: Courbertier v. Academy Bus, LLC, NY Slip Op 06289 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Thursday, August 26, 2010

Labor Law.

Practice point: The purpose of § 240(1) is to protect workers not from routine risks but from the specific risks resulting from elevation differentials at the worksite.

Students should note that the statute covers necessary and incidental activities, even if the injury is sustained away from the site of the construction work.

Case: D'Alto v. 22-24 129th St., LLC, NY Slip Op 06291 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Trial practice.

Wednesday, August 25, 2010

Family Law.

Practice point: In order to modify a custody or visitation arrangement, there must be a showing of a change in circumstances requiring the modification to protect the best interests of the child.

Students should note that the standard for determining the child's best interests is the totality of the circumstances.

Case: Peralta v. Irrizary, NY Slip Op 06374 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Labor Law.

Tuesday, August 24, 2010

Torts.

Practice point: A cause of action sounding in abuse of process requires an unlawful interference with one's person or property.

Students should note that merely commencing a civil action, even with a malicious motive, is insufficient to make out the cause of action.

Case: Tenore v. Kantrowitz, Goldhamer & Graifman, P.C., NY Slip Op 06370 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Family Law.

Torts.

Practice point: A cause of action sounding in abuse of process requires an unlawful interference with one's person or property.

Students should note that merely commencing a civil action, even with a malicious motive, is insufficient to make out the cause of action.

Case: Tenore v. Kantrowitz, Goldhamer & Graifman, P.C., NY Slip Op 06370 (2d Dept. 2010)



Tomorrow's issue: Family Law.

Monday, August 23, 2010

Motion practice.

Practice point: If a defendant fails to pay the settlement amount within 21 days of tender of the required documents, plaintiff, without further notice, may enter a judgment for the amount, as well as interest, costs and disbursements, pursuant to CPLR 5003-1(e).

Students should note that where the release and stipulation of discontinuance are tendered by mail, the 21-day period is measured from their receipt.

Case: Klee v. America's Best Bottling Co., Inc., NY Slip Op 06361 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Friday, August 20, 2010

Torts.

Practice point: Where an object capable of deteriorating is concealed from view, a property owner's duty of reasonable care requires periodic inspection of the area.

Students should note that a cause of action may sound in res ipsa loquitur if the area in question is one to which the public did not have unfettered access.

Case: Hoffman v. United Methodist Church, NY Slip Op 06360 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Thursday, August 19, 2010

Motion practice.

Practice point: A court which renders a judgment or order may relieve a party from it on such terms as may be just, pursuant to CPLR 5015(a).

Students should note that such terms may include the imposition of a bond or undertaking.

Case: Doris v. Lewis, NY Slip Op 06357 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Motion practice.

Practice point: A court which renders a judgment or order may relieve a party from it on such terms as may be just, pursuant to CPLR 5015(a).

Students should note that such terms may include the imposition of a bond or undertaking.

Case: Doris v. Lewis, NY Slip Op 06357 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Wednesday, August 18, 2010

Motion practice.

Practice point: Determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable, pursuant to CPLR 3212(f).

Students should note that the delay requires a showing that discovery may lead to relevant evidence.

Case: Anne Koplick Designs, Inc. v. Lite, NY Slip OP 06356 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Tuesday, August 17, 2010

Motion practice.

Practice point: Generally, estoppel is unavailable as against a governmental agency.

Students should note that the exception is when the agency's actions would defeat a legal or properly obtained right.

Case: Brad H. v. City of New York, NY Slip Op 06355 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Monday, August 16, 2010

Torts.

Practice point: A driver is bound to see what is there to be seen with the proper use of his senses.

Students should note that there can be more than one proximate cause of an accident.

Case: Topalis v. Zowalski, NY Slip Op 06305 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Friday, August 13, 2010

Motion practice.

Practice point: A court may sanction a party for willfully failing to comply with discovery, pursuant to CPLR 3216.

Students should note that sanctions include precluding the party from producing in evidence designated things or items of testimony.

Case: Raville v. Elnomany, NY Slip Op 06302 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Torts.

Thursday, August 12, 2010

Motion practice.

Practice point: Statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, if they are material and pertinent to the issue.

Students should note that proceedings before a Grievance Committee are quasi-judicial.

Case: Kilkenny v. Law Off. of Cushner & Garvey, LLP, NY Slip Op 06295 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Wednesday, August 11, 2010

Motion practice.

Practice point: The court must clearly define for the jury exactly what it has to determine in order to find negligence.

Students should note that the charge, among other things, must state separately the disputed issues.

Case: Altamirano v. Door Automation Corp., NY Slip Op 06283 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Tuesday, August 10, 2010

Motion practice.

Practice point: The court may grant a forum non conviens motion on any condition that may be just, pursuant to CPLR 327(a).

Students should note that dismissal could properly be conditioned on a waiver of the foreign forum's advantageous statute of limitations.

Case: Patriot Exploration v. Thompson & Knight, NY Slip Op 06217 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Monday, August 9, 2010

Motion practice.

Practice point: The court can grant relief not dramatically unlike what was sought in plaintiff's prayer, if there is supporting proof, and if it will not prejudice any party.

Students should note that, under Labor Law § 241(6), liability does not attach to alleged violations of Occupational Safety and Health Administration regulations.

Case: Shaw v RPA Assoc., LLC, NY Slip Op 06238 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Friday, August 6, 2010

Motion practice.

Practice point: There is no mandatory ministerial duty to enter a default judgment against a defaulting party.

Students should note that, instead, the court must determine whether the supporting facts are sufficient to establish a viable cause of action.

Case: McGee v. Dunn, NY Slip Op 06233 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Motion practice.

Practice point: There is no mandatory ministerial duty to enter a default judgment against a defaulting party.

Students should note that, instead, the court must determine whether the supporting facts are sufficient to establish a viable cause of action.

Case: McGee v. Dunn, NY Slip Op 06233 (2d Dept. 2010)



Monday's issue: Motion practice.

Thursday, August 5, 2010

Torts.

Practice point: The Transit Authority owes no duty to protect against a third-person assault, absent a special relationship between Transit and the person assaulted.

Students should note that, to establish a special relationship, there must be evidence of justifiable reliance on Transit's affirmative undertaking to act on plaintiff's behalf.

Case: Frazier v. MABSTOA, NY Slip Op 06229 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Wednesday, August 4, 2010

Assumption of the risk.

Practice point: A sports participant does not assume the risk of intentional or reckless conduct.

Students should note that the doctrine cannot be invoked when there is evidence of a flagrant rules violation unrelated to the way the game is played, and without a competitive purpose.

Case: Filippazzo v. Kormoski, NY Slip Op 06228 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Tuesday, August 3, 2010

Motion practice.

Practice point: An affidavit of service constitutes prima facie evidence of proper service.

Students should note, while the sworn denial of receipt generally necessitates an evidentiary hearing, no hearing is required if defendant's affidavit is nothing more than a bare and conclusory denial.

Case: Associates First Capital Corp. v. Wiggins, NY Slip Op 06225 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Assumption of the risk.

Monday, August 2, 2010

Ethics.

Practice point: A felony conviction in another State triggers automatic disbarment if the offense would constitute a felony under New York's Penal Law, pursuant to Judiciary Law § 90[4][e].

Students should note that the foreign felony need not be a mirror image of the New York felony, but must be essentially similar.

Case: Matter of Mahler, NY Slip Op 06152 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.