Friday, September 28, 2012

A police officer's use of force.



Practice point: Under a theory of respondeat superior, a municipality may be vicariously liable for a common-law assault, premised upon an assault by a police officer.

Student note:  An officer executing a search warrant is privileged to use reasonable force to effectuate the detention of the occupants of the place to be searched. The reasonableness of the use of force should be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

Case: Linson v. City of New York, NY Slip Op 06193 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Enforcing a forum selection clause.

Thursday, September 27, 2012

A referee's powers and compensation.



Practice point: A referee appointed to hear and determine an issue has all the powers of the court in performing a like function, including entertaining the post-trial motions, pursuant to CPLR 4301 and 4318.

Student note: A referee may be compensated at the rate fixed by the Supreme Court in the order of reference for the performance of those duties authorized by that order, pursuant to CPLR 8003[a]

Case: Gamman v. Silverman, NY Slip Op 06188 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: A police officer’s use of force.

Wednesday, September 26, 2012

Contract interpretation.



Practice point: The fundamental rule of contract interpretation is that agreements are construed in accord with the parties' intent, and the best evidence of their intention is what they say in their writing.

Student note: Thus, a written agreement that is clear and unambiguous on its face must be enforced according to the plain meaning of its terms, and extrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous.

Case: Banco Espírito Santo, S.A. v. Concessionária Do Rodoanel Oeste S.A., NY 06186 (1st Dept. 2012.

Here is the decision. 

Tomorrow’s issue: A referee’s powers and compensation.

Tuesday, September 25, 2012

Arbitration awards.



Practice point: An arbitration award will not be overturned unless it is violative of a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on the arbitral panel's power.

Student note: Pursuant to CPLR 7510, the court shall confirm an arbitration award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified upon a ground specified in section 7511.

Case: Wiederhorn v. J. Ezra Merkin, NY Slip Op 06181 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Contract interpretation.

Monday, September 24, 2012

Motion to dismiss based on a failure to state a cause of action.



Practice point:  In reviewing a motion to dismiss pursuant to CPLR 3211(a)(7), the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note: Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action.

Case: Rozell v. Milby, NY Slip Op 06133 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Arbitration awards.

Friday, September 21, 2012

Motion to dismiss based on documentary evidence.



Practice point: A motion to dismiss based on documentary evidence, pursuant to CPLR 3211(a)(1), may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Student note: In order to be considered documentary evidence within the meaning of CPLR 3211(a)(1), the evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable.

Case: Norment v. Interfaith Ctr. of N.Y., N.Y. Slip Op 06130 (2d. Dept. 2012).

Here is the decision.

Monday’s issue: Motion to dismiss based on a failure to state a cause of action.

Thursday, September 20, 2012

Collateral estoppel.



Practice point: Collateral estoppel preserves party and judicial resources by preventing relitigation of matters that have already been resolved. It prevents inconsistent results, and it can be asserted in a new case by a nonparty to the original proceeding.

Student note: Moreover, collateral estoppel principles apply as well to awards in arbitration as they do to adjudications in judicial proceedings.

Case: Feinberg v. Boros, NY Slip Op 06114 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion to dismiss based on documentary evidence.

Wednesday, September 19, 2012

Stating a 241(6) Labor Law claim.



Practice Point: To state a claim under § 241(6), a plaintiff must identify a specific Industrial Code provision mandating compliance with concrete specifications.

Student note: The statute imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation, or demolition work is being performed.

Case:  Capuano v. Tishman Constr. Corp., NY Slip Op 06109 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Collateral estoppel

Tuesday, September 18, 2012

Stay of the proceedings.



Practice point: Except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just, pursuant to CPLR 2201.

Student note: A court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof, and the potential waste of judicial resources.

Case: HSBC Bank USA, N.A. v. Posy, NY Slip Op 06125 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Stating a 241(6) Labor Law claim.

Monday, September 17, 2012

Adverse possession.



Practice point: To prevail on a claim of adverse possession, the defendants were required to establish that their possession of the disputed portion was (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period.

Student note: Moreover, inasmuch it was under claim of title not written, the defendants were required to establish that they usually cultivated or improved the disputed portion or that they protected it by a substantial inclosure.

Case: Tolake Corp. v. Altobello, NY Slip Op 06071 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Stay of the proceedings.

Friday, September 14, 2012

Discovery demand for medical records.



Practice point: A party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue.

Student note: However, a party does not waive the physician-patient privilege with respect to unrelated illnesses or injuries.

Case: Romance v. Zavala, NY Slip Op 06067 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Adverse possession.

Thursday, September 13, 2012

Fraud, and the summary judgment burden.



Practice point: The essential elements of a cause of action sounding in fraud are a misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it; justifiable reliance of the other party on the misrepresentation or material omission; and injury.

Student note: A party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense.

Case: River Ridge Living Ctr., LLC v. ADL Data Sys., Inc., NY Slip Op 06066 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Discovery demand for medical records.

Wednesday, September 12, 2012

Preliminary injunction.



Practice point: To obtain a preliminary injunction, a movant must establish (1) a likelihood of success on the merits; (2) irreparable injury absent a preliminary injunction; and (3) a balancing of the equities in the movant's favor,

Student note: Irreparable injury, for purposes of equity, has been held to mean any injury for which money damages are insufficient.

Case: L & M Franklyn Ave, LLC v. S. Land Dev., LLC, NY Slip Op 06064 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Fraud, and the summary judgment burden.

Tuesday, September 11, 2012

Motion for leave to renew or reargue.



Practice point: A motion for renewal must be based upon new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221[e][2]. A motion for reargument must be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion, pursuant to CPLR 2221[d][2]). Further, even where a motion for reargument is technically untimely under CPLR 2221[d][3], a court has discretion to reconsider its prior ruling, pursuant to CPLR 2004.

Student note: A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court.

Case: HSBC Bank USA, N.A. v. Hall, NY Slip Op 06063 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Preliminary injunction.

Monday, September 10, 2012

Law of the case.



Practice point: The doctrine is a rule of policy and practice to ensure that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned.

Student note: The doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision, and to the same questions presented in the same case.

Case: Erickson v. Cross Ready Mix, Inc., NY Slip Op 06062 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion for leave to renew or reargue.

Friday, September 7, 2012

Day care and the duty of care.


Practice point: Both a day care program and a person to whom the custody and care of a child is entrusted by a parent have a duty to adequately supervise children in their charge, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.

Student note: A plaintiff is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred. Plaintiff's burden of proof on this issue is satisfied if the possibility of another explanation for the event is sufficiently remote or technical to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence.

Case: Cesar Ivan A. v. Lolita Child Day Care, NY Slip Op 06051 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Law of the case.

Thursday, September 6, 2012

The work product privilege.


Practice point: Work product is privileged, and that privilege extends to experts retained as consultants to assist in analyzing or preparing the case. However, protection runs only to facts and observations disclosed by the attorney. Thus, it is the information and observations of the attorney that are conveyed to the expert which may be subject to trial exclusion. The privilege does not insulate other disclosed information from public exposure.

Student note: To the extent that any portion of the reports prepared by the forensic analyst is attorney work product, the privilege protects the reports notwithstanding that the analyst reviewed the reports prior to his deposition.

Case: Beach v. Touradji Capital Mgt., LP, NY Slip Op 06004 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Day care and the duty of care.

Wednesday, September 5, 2012

Labor Law.


Practice point: The engineer's contractual duty to visit the site "at periodic intervals" to determine if construction was in accordance with plans and specifications, is insufficient by itself to hold the engineer liable under Labor Law § 240(1) and § 241(6), and there is no evidence otherwise to indicate that the engineer had the authority to direct or control the work at issue.

Student note: Since the defective condition was latent and not visibly apparent, the fact that the owners were frequently present at the accident site, even for prolonged periods of time, is insufficient to establish constructive notice.

Case: Lopez v. Dagan, NY Slip Op 05999 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: The work product privilege.

Tuesday, September 4, 2012

Consumer protection from bad actors.


Practice point: General Business Law article 22-A, entitled "Consumer Protection from Deceptive Acts and Practices," and which includes General Business Law §§ 349 and 350, deals with practices which have a broad impact on consumers at large. There is no private cause of action, originating in a contractual dispute, based on the statute.

Student note: To successfully assert a claim under General Business Law §§ 349 or 350, a party must allege that its adversary has engaged in consumer-oriented conduct that is materially misleading, and that the party suffered injury as a result of the allegedly deceptive act or practice.

Case: Yellow Book Sales & Distrib. Co., Inc. v. Hillside Van Lines, Inc., NY Slip Op 06022 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Labor Law.

Monday, September 3, 2012

Court holiday.

The courts are closed to mark the Labor Day holiday.

Tomorrow's issue: Consumer protection from bad actors.