New York Law Notes

Assumption of the risk.

2012-02-01T03:11:00.000-05:00

Practice point: By engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally, and flow from such participation.

Student note: A participant's consent does not run to concealed or unreasonably increased risks.

Case: Charles v. Uniondale School District Bd of Ed., NY Slip Op 00479 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Notice of claim.

Power of attorney.

2012-01-31T03:14:00.000-05:00

Practice point: If a signature on a power of attorney is forged, any document executed by the purported attorney-in-fact pursuant to the power of attorney is void.

Student note:If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing.

Case: ABN AMRO Mtge. Group, Inc. v. Stephens, NY Slip Op 00477 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Assumption of the risk.

Labor Law.

2012-01-30T03:31:00.000-05:00

Practice point: When the claim is based on alleged defects or dangers in the methods or materials used to perform the work, a plaintiff may recover against an owner or general contractor under § 200 only on a showing that the defendant had the authority to supervise or control the performance of the work.

Student note: General supervisory authority for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability.

Case: Cabrera v. Revere Condominium, NY Slip Op 00320 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Power of attorney.

Contractual indemnification.

2012-01-27T03:07:00.000-05:00

Practice point: A party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances.

Student note: The party must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.

Case: Baillargeon v. Kings County Waterproofing Corp., NY Slip Op 00315 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Labor Law.

Falls on City property.

2012-01-26T03:06:00.000-05:00

Practice point: Section 7-201(c) of the Administrative Code of the City of New York bars an action if there was no prior written written notice of the alleged defective condition.

Student note: The City's intake records concerning uneven boards on the boardwalk and work orders noting that there were loose or broken boards in need of repair did not raise a triable issue of fact as to whether the City was aware of the alleged defective condition which caused plaintiff to fall.

Case: Arcasascio v. City of New York, NY Slip Op 00313 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Contractual indemnification.

Duty to protect against assaults.

2012-01-25T03:15:00.000-05:00

Practice point: The owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.

Student note: While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control.

Case: Afanador v. Coney Bath, LLC, NY Slip Op 00312 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Falls on City property.

Res ipsa loquitur.

2012-01-24T03:15:00.001-05:00

Practice point: The charge is warranted only where a plaintiff establishes that (1) the type of accident at issue ordinarily does not occur in the absence of negligence; (2) the instrumentality causing the accident was in the defendant's exclusive control; and (3) the accident was not due to any voluntary action or contribution by the plaintiff.

Student note: A fall on a moving bus is not an event that ordinarily does not occur in the absence of negligence.

Case: Abrams v. Excellent Bus Serv., Inc., NY Slip Op 00311 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Duty to protect against assaults.

Punitive damages.

2012-01-23T03:08:00.000-05:00

Practice point: New York does not recognize an independent cause of action for punitive damages.

Student note: Questions of law which appear on the face of the record and which could not have been avoided if raised at the proper juncture may be raised for the first time on appeal.

Case: Muniz v. Mount Sinai Hosp. of Queens, NY Slip Op 00192 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Res ipsa loquitur.

Right-of-way.

2012-01-20T02:57:00.000-05:00

Practice point: A plaintiff-driver is entitled to judgment as a matter of law on the issue of liability if he or she demonstrates that the sole proximate cause of an accident was the defendant driver's violation of VTL § 1141 in turning left directly into the path of the plaintiff's oncoming vehicle which was lawfully present in the intersection.

Student note: A driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection.

Case: Gause v. Martinez, NY Slip Op 00178 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Punitive damages.

The Noseworthy doctrine.

2012-01-19T02:56:00.000-05:00

Practice point: Having presented medical evidence establishing the loss of memory and its causal relationship to defendant's fault, a plaintiff is entitled to the lesser standard of proof applicable to a party unable to present his version of the facts, pursuant to Noseworthy v. City of New York, 298 NY 76 [1948].

Student note: In order to avail himself of the doctrine, the plaintiff must present prima facie evidence of defendant’s negligence.

Case: Bah v. Benton, NY Slip Op 00106 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Right-of-way.

Employment law.

2012-01-18T03:01:00.002-05:00

Practice point: The New York State Human Rights Law does not immunize disabled employees from discipline or discharge for misconduct in the workplace.

Student note: EEOC Guideline No. 30 specifically provides that an employer may discipline an individual with a disability for violating a workplace conduct standard which is job-related and consistent with business necessity.

Case: Hazen v. Hill Betts & Nash LLP, NY Slip Op 00047 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: The Noseworthy doctrine.

Labor Law.

2012-01-17T03:20:00.001-05:00

Practice point: Defendant is not subject to statutory liability if plaintiff simply lost his footing while climbing a properly secured, non-defective extension ladder that did not malfunction.

Student note: Deposition testimony concerning defendant’s policy of using stair towers instead of ladders does not constitute an admission that the ladder was an inappropriate safety device for the work.

Case: Ellerbe v. Port Auth. of N.Y. & N.J., NY Slip Op 00032 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Employment Law.

Court holiday.

2012-01-16T03:27:00.000-05:00

The courts are closed today, and so there is no case posted on NEW YORK LAW NOTES.

Tomorrow’s issue: Labor Law.

Jurisdiction.

2012-01-13T03:03:00.000-05:00

Practice point: The plaintiff, in opposing a motion to dismiss pursuant to CPLR 3211(a)(8), must make a prima facie showing that the defendant was subject to the court’s personal jurisdiction.

Student note: When opposing on the ground that discovery is necessary, plaintiff need not make a prima facie showing, but must only demonstrate that facts may exist for the court to exercise personal jurisdiction over the defendant.

Case: Daniel B. Katz & Assoc. Corp. v. Midland Rushmore, LLC, NY Slip Op 09584 (2d Dept. 2011).

Here is the decision.

Tuesday’s issue: Labor Law.

Equitable estoppel.

2012-01-12T03:30:00.000-05:00

Practice point: The extraordinary remedy of equitable estoppel may be invoked to bar the affirmative defense of the statute of limitations only where the defendant's affirmative wrongdoing contributed to the delay between accrual of the cause of action and commencement of the legal proceeding.

Student note: The plaintiff must demonstrate reasonable reliance on the defendant's misrepresentations, and the plaintiff's due diligence in ascertaining the facts.

Case: Clark v. Ravikumar, NY Slip Op 09580 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Jurisdiction.

Expert testimony.

2012-01-11T03:06:00.000-05:00

Practice point: Expert testimony has been found necessary when it helps to clarify an issue which calls for professional or technical knowledge, possessed by an expert and beyond the understanding of the typical juror.

Student note: The admissibility and scope of expert testimony is a determination within the discretion of the trial court.

Case: Christoforatos v. City of New York, NY Slip Op 09579 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Equitable estoppel.

Ambulance liability.

2012-01-10T02:51:00.001-05:00

Practice point: While the operator of an ambulance owes its passengers a duty of reasonable care, that duty does not require that the operator of the vehicle ensure that an adult passenger has fastened his or her seatbelt.

Student note: Tthe New York City Fire Department's internal rules requiring that members ensure that passengers in emergency vehicles wear seatbelts imposes a greater standard of care than that imposed by law, and so a violation of Department rules cannot serve as basis for plaintiff's imposing liability.

Case: Asantewaa v. City of New York, NY Slip Op 09174 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Expert testimony.

The court's granting relief.

2012-01-09T03:01:00.003-05:00

Practice point: The court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.

Student note: However, the stability of contract obligations must not be undermined by judicial sympathy with a party.

Case: Emigrant Mtge. Co., Inc. v. Fisher, NY Slip Op 09264 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Ambulance liability.

Legal malpractice.

2012-01-06T03:28:00.000-05:00

Practice point: A cause of action alleging legal malpractice may be based upon the creation of a loan document which is usurious and does not fall under any exceptions to the law of usury.

Student note: The action to recover damages arising from legal malpractice must be commenced within three years after accrual, pursuant to CPLR 214[6], and the action accrues when the malpractice is committed.

Case: DeStaso v. Condon Resnick, LLP, NY Slip Op 09259 (2d Dept. 2011).

Here is the decision.

Monday’s issue: The court’s granting relief.

Attorney's fees.

2012-01-05T03:13:00.001-05:00

Practice point: A party must pay his or her own attorney's fee unless an award is authorized by an agreement between the parties, by statute, or by court rule.

Student note: The plaintiff cannot recover an award of an attorney's fee under the New York Civil Rights Law, which does not provide for such relief, pursuant to § 47-b[1]).

Case: Degregorio v. Richmond Italian Pavillion, Inc., NY Slip Op 09258 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Legal malpractice.

Vacating a default.

2012-01-04T03:00:00.000-05:00

Practice point: To prevail on a motion to vacate a default, a party is required to demonstrate both a reasonable excuse for its default and a potentially meritorious defense

Student note: The trial court has the discretion to accept law office failure as a reasonable excuse.

Case: Adolph H. Schreiber Hebrew Academy of Rockland, Inc. v Needleman, NY Slip Op 09250 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Attorney’s fees.

Bifurcated trials.

2012-01-03T03:07:00.000-05:00

Practice point: Courts are encouraged to bifurcate issues of liability and damages in personal injury trials, pursuant to 22 NYCRR 202.42.

Student note: A unified trial should only be conducted where the nature of the plaintiff's injuries has an important bearing on the issue of liability.

Case: Galarza v. Crown Container Co., Inc., NY Slip Op 09088 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Vacating a default.

Court holiday.

2012-01-02T03:32:00.000-05:00

The courts are closed today to mark the New Year’s holiday.

Tomorrow’s issue: Bifurcated trials.

Fee forfeitures.

2011-12-30T02:58:00.001-05:00

Practice point: An attorney who violates a disciplinary rule may be discharged for cause and is not entitled to any fees for services rendered.

Student note: Misconduct that occurs before an attorney's discharge but is not discovered until after the discharge may serve as a basis for a fee forfeiture.

Case: Doviak v. Finkelstein & Partners, LLP, NY Slip Op 09085 (2d Dept. 2011).

Here is the decision.

Tuesday’s issue: Bifurcated trials.

Breach of fiduciary duty.

2011-12-29T03:07:00.000-05:00

Practice point: A cause of action sounding in breach of fiduciary duty must be pleaded with the particularity required by CPLR 3016(b).

Student note: The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages directly caused by the defendant's misconduct.

Case: Armentano v. Paraco Gas Corp., NY Slip Op 09075 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Fee forfeitures.

Premature summary judgment motions.

2011-12-28T02:57:00.001-05:00

Practice point: To establish that the plaintiff's motion was premature, the defendant must demonstrate that additional discovery might lead to relevant evidence, or that facts essential to justify opposition to the motion are exclusively within the plaintiff’s knowledge and control.

Student note: The mere hope or speculation that evidence sufficient to defeat the motion may be uncovered during the discovery process is insufficient.

Case: Arazashvilli v. Executive Mgt. Corp., NY Slip Op 09074 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Breach of fiduciary duty.

Leave to amend.

2011-12-27T03:03:00.001-05:00

Practice point: The determination of whether to grant leave to amend a pleading is within the court's discretion, and the exercise of that discretion will not be lightly disturbed.

Student note: Leave to amend an answer to assert an affirmative defense should generally be granted where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that it would prejudice or surprise the opposing party.

Case: Giuffre v. DiLeo, NY Slip Op 08903 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Premature summary judgment motions.

Court holiday.

2011-12-26T03:19:00.000-05:00

The courts are closed today to mark the Christmas holiday.

Tomorrow's issue is leave to amend.

Reckless disregard.

2011-12-23T03:14:00.000-05:00

Practice point: The manner in which a police officer operates his or her vehicle in an emergency situation may not form the basis for civil liability to an injured third party unless the officer acted in reckless disregard for the safety of others.

Student note: The reckless disregard' standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.

Case: Elnakib v. County of Suffolk, NY Slip Op 08898 (2d Dept. 2011).

Here is the decision.

Tuesday’s issue: Leave to amend.

Elevator company liability.

2011-12-22T02:54:00.001-05:00

Practice point: An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge, or failure to use reasonable care to discover and correct a condition which it should have found.

Student note: Additionally, a plaintiff may raise a triable issue of fact as to liability under the doctrine of res ipsa loquitur by submitting proof that the rapid descent, shaking, and abrupt, misaligned stop of the elevator was an occurrence that would not ordinarily occur in the absence of negligence; that the maintenance and service of the elevator was in the exclusive control of the elevator company; and that no act or negligence on the part of the plaintiff contributed to the happening of the accident.

Case: DeVito v. Centennial El. Indus., Inc., NY Slip Op 08897 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Reckless disregard.

Service on Health and Hospitals Corporation.

2011-12-21T03:00:00.000-05:00

Practice point: The City of New York and HHC are separate entities for purposes of a notice of claim.

Student note:Therefore, service upon the Comptroller of the City of New York is insufficient to constitute service upon HHC, the proper party to be served.

Case: Barnaman v. NYC Health & Hosps. Corp., NY Slip Op 08891 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Elevator company liability.

Escrow agency.

2011-12-20T03:04:00.000-05:00

Practice point: An escrow agent not only has a contractual duty to follow the escrow agreement, but additionally becomes a trustee of anyone with a beneficial interest in the trust.

Student note: Therefore, an escrow agent can be held liable for both breach of the escrow agreement and breach of fiduciary duty as escrowee.

Case: Baquerizo v. Monasterio, NY Slip Op 08890 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Service on Health and Hospitals Corporation.

Summations.

2011-12-19T03:19:00.000-05:00

Practice point: Trial counsel is afforded wide latitude in presenting arguments to a jury in summation.

Student note: Where defense counsel remains within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of a plaintiff's proof, such remarks do not deprive the plaintiff of a fair trial.

Case: Chapotin v. City of New York, NY Slip Op 08793 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue Escrow agency.

Medical records.

2011-12-16T03:00:00.001-05:00

Practice point: A party seeking to inspect a plaintiff's medical records must first demonstrate that the plaintiff's physical or mental condition is in controversy, within the meaning of CPLR 3121(a).

Student note: Even where this preliminary burden has been satisfied, discovery may still be precluded where the information requested is privileged and, thus, exempted from disclosure, pursuant to CPLR 3101(b).

Case: Paliouras v. Donohue, NY Slip Op 08736 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Summations.

The emergency doctrine.

2011-12-15T03:31:00.000-05:00

Practice point: The doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency.

Student note: The existence of an emergency and the reasonableness of the response to it generally present issues of fact.

Case: Mitchell v. City of New York, NY Slip Op 08734 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Medical records.

Depositions.

2011-12-14T03:05:00.001-05:00

Practice point: A defendant-corporation has the right to designate, in the first instance, which of its employees will appear for a deposition.

Student note: The plaintiff has the burden of demonstrating that the defendant's employee who was already deposed had insufficient knowledge or was otherwise inadequate, and that there is a substantial likelihood that the additional employees sought for depositions possess information that is material and necessary to the prosecution of the action.

Case: Gelda v. Costco Wholesale Corp., NY Slip Op 08722 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: The emergency doctrine.

Affirmative defenses.

2011-12-13T02:52:00.000-05:00

Practice point: CPLR 3211(b) authorizes a plaintiff to move, at any time, to dismiss a defendant's affirmative defense on the ground that it has no merit.

Student note: In moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that it is without merit as a matter of law.

Case: Coyle v. Lefkowitz, NY Slip Op 08721 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Depositions.

Striking an answer.

2011-12-12T03:23:00.000-05:00

Practice point: Pursuant to CPLR 3126, a court may strike an answer as a sanction if a defendant refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed.

Student note: However, the drastic remedy of striking an answer is inappropriate absent a clear showing that the defendant's failure to comply with discovery demands was willful or contumacious.

Case: Hoi Wah Lai v. Mack, NY Slip Op 08563 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Affirmative defenses.

Day care liability.

2011-12-09T03:32:00.000-05:00

Practice point: A provider of day care services owes the same duty of care and supervision as a reasonably prudent parent under the circumstances.

Student note: As a general matter, schools have a duty to adequately supervise the students in their charge, and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.

Case: Gonzales v. Munchkinland Child Care, LLC, NY Slip Op 08561 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Striking an answer.

Landowner liability.

2011-12-08T03:41:00.000-05:00

Practice point: The common law provides that liability for injuries sustained as a result of negligent maintenance of, or the existence of dangerous and defective conditions to, public sidewalks is placed on the municipality and not the abutting landowner.

Student note: However, an abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner, and expressly makes the owner liable for injuries caused by a breach of that duty.

Case: Alleyne v. City of New York, NY Slip Op 08548 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Day care liability.

Fee disputes.

2011-12-07T02:59:00.001-05:00

Practice point: Part 137 does not apply to fee disputes involving sums of more than $50,000, absent the consent of the parties, pursuant to 22 NYCRR 137.1[b][2].

Student note: To the extent the client challenged the quality of the legal services provided, his contentions were unavailing, because he failed to raise them at the inquest deciding the reasonable value of the legal services provided.

Case: Yahudaii v. Baroukhian, NY Slip Op 08284 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Landowner’s liability.

Legal malpractice.

2011-12-06T03:09:00.000-05:00

Practice point: Plaintiffs were not required to allege the specific scope of defendants' duties, given the absence of a governing retainer agreement.

Student note: Plaintiffs' expert affidavit was properly considered to remedy any defects in the complaint.

Case: Fitzsimmons v. Pryor Cashman LLP, NY Slip Op 08280 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Fee disputes.

Late notice of claim.

2011-12-05T03:07:00.000-05:00

Practice point: In exercising its discretion to grant leave to serve the late notice, a court must consider whether (1) the claimant has demonstrated a reasonable excuse for failing to serve timely; (2) the claimant was an infant, or mentally or physically incapacitated; (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter; and (4) the delay would substantially prejudice the public corporation in defending on the merits, pursuant to General Municipal Law § 50-e[5].

Student note: The factor of the petitioner’s infancy, standing alone, does not compel the granting of a petition for leave to serve a late notice.

Case: Matter of Magana v. Westchester County Health Care Corp., NY Slip Op 08155 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Legal malpractice.

Labor Law.

2011-12-02T03:14:00.000-05:00

Practice point: For § 241(6) purposes, a temporary loading dock is a platform under Industrial Code § 23-1.22(c)(2), and not a scaffold.

Student note: An expert's opinion will be disregarded where no authority, treatise, standard, building code, article or other corroborating evidence is cited to support the assertion concerning an alleged deviation from good and accepted industry custom and practice.

Case: Cassidy v. Highrise Hoisting & Scaffolding, Inc., NY Slip Op 07936 (1st Dept. 2011).

Here is the decision.

Monday’s issue: Late notice of claim.

A binding signature.

2011-12-01T03:00:00.000-05:00

Practice point: A person who signs an agreement without having read it is nonetheless bound by its terms.

Student note: A signer's duty to read and understand that which it signed is not diminished merely because he was provided with only a signature page.

Case: Vulcan Power Co. v. Munson, NY Slip Op 07917 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Labor Law.

Title to a motor vehicle.

2011-11-30T03:31:00.000-05:00

Practice point: Title is transferred when the parties intend the transfer to occur.

Student note: Therefore, title may pass to a purchaser on delivery of the vehicle, notwithstanding that formal registration of the vehicle in the purchaser's name occurs later.

Case: Godfrey v. G.E. Capital Auto Lease, Inc., NY Slip Op 07903 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: A binding signature.

Vacating a default.

2011-11-29T03:05:00.000-05:00

Practice point: To vacate a default in opposing defendant’s summary judgment motion, plaintiff is required to demonstrate a reasonable excuse for not opposing the motion and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1].

Student note: Plaintiff’s excuse of law office failure will be rejected if the record shows that the alleged mistake was not isolated, but rather part of a pattern of willful delay and default.

Case: Thapt v. Luthern Med. Ctr., NY Slip Op 08141 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Title to a motor vehicle.

The relation-back doctrine.

2011-11-28T01:13:00.001-05:00

Practice point: The doctrine, which is codified in CPLR 203(b), allows a claim asserted against a defendant in an amended complaint to relate back to claims previously asserted against a codefendant for statute of limitations purposes if the two defendants are united in interest.

Student note: The plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new defendant knew or should have known that, but for plaintiff's mistake as to the identity of the proper parties, the action would have been brought against him or her as well.

Case: Stevens v. Winthrop S. Nassau Univ. Health Sys., Inc., NY Slip Op 08140 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Vacating a default.

Pre-employment checks.

2011-11-25T05:19:00.000-05:00

Practice point: To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, plaintiff must show that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.

Student note: There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.

Case: Shor v. Touch-N-Go Farms, Inc., NY Slip Op 08138 (2d Dept. 2011).

Here is the decision.

Monday’s issue: The relation-back doctrine.

Happy Thanksgiving.

2011-11-24T05:22:00.000-05:00

Today is a Court holiday, and so there is no post on NEW YORK LAW NOTES.

Tomorrow’s issue is pre-employment checks.

A property owner's duty to protect.

2011-11-23T05:22:00.001-05:00

Practice point: Although a property owner must act in a reasonable manner to prevent harm to those on its premises, the duty to control the conduct of persons on its premises arises only when the owner can control such conduct, and is reasonably aware of the need for that control.

Student note: The owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.

Case: Kiely v. Benini, NY Slip Op 08126 (2d Dept. 2011).

Here is the decision.

Friday’s issue: Pre-employment checks.

Legal malpractice.

2011-11-22T05:20:00.000-05:00

Practice point: To recover damages, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.

Student note: To establish causation, a plaintiff is required to show that he would not have incurred any damages, but for the lawyer's negligence, and that he incurred actual damages as a direct result of the attorney's actions or inaction.

Case: Humbert v. Allen, NY Slip Op 08125 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: A property owner’s duty to protect.

Respondeat superior.

2011-11-21T02:08:00.000-05:00

Practice point: Pursuant to the doctrine, an employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment.

Student note: However, liability doe not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business.

Case: Horvath v. L & B Gardens, Inc., NY Slip Op 08124 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Legal malpractice.

Proper service.

2011-11-18T02:59:00.000-05:00

Practice point: Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service.

Student note: However, where there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted, and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence.

Case: Goralski v. Nadzan, NY Slip Op 08122 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Respondeat superior.

Whistleblowers.

2011-11-17T03:04:00.000-05:00

Practice point: A cause of action based upon Labor Law § 740, known as the whistleblower statute, is available to an employee who discloses or threatens to disclose an employer's activity or practice which (1) is in violation of a law, rule or regulation, and (2) creates a substantial and specific danger to the public health.

Student note: Since plaintiff asserted a § 740 cause of action, she waived the cause of action alleging wrongful termination, inasmuch as it arose out of the same underlying claim of retaliatory action.

Case: Freese v. Willa, NY Slip Op 08118 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Proper service.

Caveat emptor.

2011-11-16T03:16:00.000-05:00

Practice point: New York adheres to the doctrine and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm's length, unless there is some conduct which constitutes active concealment.

Student note: A plaintiff seeking to recover damages for active concealment must show that the defendant thwarted the plaintiff's efforts to fulfill the responsibilities imposed by the doctrine.

Case: Margolin v. I M Kapco, Inc., NY Slip Op 07815 (2d Dept. 2011)

Here is the decision.

Tomorrow’s issue: Whistleblowers.

Unlicensed contractors.

2011-11-15T03:22:00.000-05:00

Practice point: An unlicensed contractor may neither enforce a home improvement contract against an owner nor seek recovery in quantum meruit.

Student note: Pursuant to CPLR 3015(e), an action to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services will be dismissed if the complaint does not allege compliance with the licensing requirement.

Case: Enko Constr. Corp. v. Aronshtein, NY Slip Op 07805 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Caveat emptor.

Preliminary injunctions.

2011-11-14T03:01:00.000-05:00

Practice point: Where the movant does not demonstrate a likelihood of success on the merits, irreparable damage, and a balance of the equities in movant's favor, the motion will not be granted.

Student note: The motion will not be denied just because there are issues of fact, unless they subvert the plaintiff's likelihood of success on the merits to such a degree that it cannot be said that the plaintiff has established a clear right to relief.

Case: Cooper v. Board of White Sands Condominium, NY Slip Op 07799 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Unlicensed contractors.

Veterans Day.

2011-11-11T03:18:00.000-05:00

Today is a Court holiday, and so there is no post on NEW YORK LAW NOTES.

To all Veterans, thank you for your service, and to everyone with a family member in service, thank you for your sacrifice.

Monday's issue is preliminary injunctions.

Judgment as a matter of law.

2011-11-10T03:16:00.000-05:00

Practice point: A motion for judgment as a matter of law must be made at the close of the opposing party's case or at any time on the basis of admissions, pursuant to CPLR 4401.

Student note: The grant of such a motion prior to the close of the opposing party's case generally will be reversed as premature, even if the opposing party's ultimate success is improbable.

Case: Burbige v. Siben & Ferber, NY Slip Op 07794 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Preliminary injunctions.

Time is of the essence.

2011-11-09T03:33:00.000-05:00

Practice point: When the contract states that time is of the essence, the parties are obligated to comply strictly with its terms.

Student note:When time is of the essence, performance on the specified date is a material element of the contract, and failure to perform on that date constitutes a material breach.

Case: Bank of America v. Petit, NY Slip Op 07787 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Judgment as a matter of law.

Election Day.

2011-11-08T03:17:00.000-05:00

Today is a Court holiday, and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue is time is of the essence.

Foreclosures.

2011-11-07T03:32:00.000-05:00

Practice point: The holder of a note and mortgage may proceed at law to recover on the note or proceed in equity to foreclose on the mortgage, but must elect only one of these remedies, pursuant to RPAPL 1301.

Student note: RPAPL 1301(1) codifies the equitable principle that once a remedy at law has been resorted to, it must be exercised to exhaustion before a remedy in equity, such as foreclosure, may be sought.

Case: Aurora Loan Servs., LLC v. Lopa, NY Slip Op 07595 (2d Dept. 2011).

Here is the decision.

Wednesday’s issue: Time is of the essence.

Slips and falls.

2011-11-04T03:30:00.000-04:00

Practice point: A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of demonstrating, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Student note: Once a defendant has actual or constructive notice of a dangerous condition, the defendant has a reasonable time to undertake remedial actions that are reasonable and appropriate under all of the circumstances.

Case: Alami v. 215 E.68th St., L.P., NY Slip Op 07591 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Foreclosures.

Labor Law.

2011-11-03T03:22:00.001-04:00

Practice point: A property owner is not liable on a § 200 claim if someone is hurt through a dangerous condition which he has undertaken to fix.

Student note: A res ipsa loquitur claim does not lie absent a showing that that the accident could not have been caused by plaintiff’s voluntary action or contribution.

Case: Henriquez v. New 520 GSH LLC, NY Slip Op 07578 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Slips and falls.

Discovery.

2011-11-02T03:18:00.000-04:00

Practice point: If relevant, plaintiff’s Facebook postings are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access.

Student note:Relevant matter from a personal diary is discoverable.

Case: Patterson v. Turner Constr. Co., NY Slip Op 07572 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Labor Law.

Summary judgment.

2011-11-01T03:10:00.001-04:00

Practice point: An argument advanced for the first time in reply papers will not be considered in deciding the motion.

Student note: New facts are required on a motion to renew, pursuant to CPLR 2221[e][2]).

Case: Rhodes v. City of New York, NY Slip Op 07569 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Discovery.

Contracts.

2011-10-31T03:20:00.000-04:00

Practice point: A court will not read into the contract an indemnity obligation that is not unmistakably present.

Student note: If the purported indemnification provision is at all ambiguous, summary judgment will be denied.

Case: Lopez v. Guei Shun Shiau, NY Slip Op 07500 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Summary judgment.

Default judgments.

2011-10-28T03:18:00.001-04:00

Practice point: Pursuant to CPLR 3215(c), if a plaintiff fails to seek entry of a judgment within one year after default, the court shall dismiss the complaint as abandoned, absent a showing of sufficient cause why it should not be dismissed.

Student note: The showing must include a viable excuse for the delay, and a demonstrably meritorious cause of action.

Case: Utak v. Commerce Bank Inc., NY Slip Op 07261 (1st Dept. 2011).

Here is the decision.

Monday’s issue: Contracts.

Labor Law.

2011-10-27T03:08:00.000-04:00

Practice point: The touchstone of any § 240(1) claim is whether the harm flows directly from the application of the force of gravity.

Student note: A worker may recover under the statute even if he did not actually fall, or if he was injured while preventing himself from falling.

Case: Reavely v. Yonkers Raceway Programs, Inc., NY Slip Op 07366 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Default judgments.

Jurisdiction.

2011-10-26T02:58:00.000-04:00

Practice point: A court is without power to render a judgment against a party over whom the court lacks jurisdiction.

Student note: A judgment rendered without jurisdiction is void, and when a deed is issued in execution upon such a void judgment, that deed is similarly void.

Case: U.S. Bank, N.A. v. Bernhardt, NY Slip Op 07415 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Labor Law.

Promissory notes.

2011-10-25T03:01:00.000-04:00

Practice point: A cause of action to recover on a note which is payable on demand accrues at the time of its execution, while on a note which is payable in full at one time, it accrues at the time it becomes due. On a note payable in installments, there are separate causes of action for each installment accrued, and the statute of limitations begins to run on the date each installment becomes due and is defaulted upon, unless the debt is accelerated.

Student note: The statute of limitations is six years, pursuant to CPLR 213[2].

Case: Morrison v. Zaglool, NY Slip Op 07401 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Jurisdiction.

Custody Agreements.

2011-10-24T03:14:00.000-04:00

Practice point: Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child.

Student note: The court should consider whether the alleged changed circumstances indicate one of the parties is unfit, the nature and quality of the relationships between the child and the parties, and the existence of a prior agreement.

Case: Matter of Chery v. Richardson, NY Slip Op 07215 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Promissory notes.

Requesting an admission.

2011-10-21T03:09:00.001-04:00

Practice point: Pursuant to CPLR 3123, a party may serve upon any other party a written request for an admission of the truth of any facts which the requesting party reasonably believes cannot be disputed at trial and which are within the knowledge of the other party or can be ascertained upon reasonable inquiry.

Student note: If the requested admission is not denied within twenty days after service, the requested admission will be deemed admitted.

Case: Nacherlilla v. Prospect Park Alliance, Inc., NY Slip Op 07205 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Custody agreements.

Deposition transcripts.

2011-10-20T16:56:00.000-04:00

Practice point: Pursuant to CPLR 3116(a), the transcript of the deposition of a deponent must be provided to the deponent for review and signature, and any changes in form or substance desired by the deponent shall be recorded.

Student note: If a deponent refuses or fails to sign the deposition under oath within 60 days, it may be used as if fully signed.

Case: Franzese v. Tanger Factory Outlet Ctrs., Inc., NY Slip Op 07200 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Requesting an admission.

Burglar alarms.

2011-10-19T03:30:00.000-04:00

Practice point: A burglar alarm agreement which contains an exculpatory clause shields the burglar alarm company from liability only for ordinary negligence, not for gross negligence.

Student note: Used in this context, gross negligence is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing.

Case: Chan v. Counterforce Cent. Alarm Servs. Corp., NY Slip Op 07197 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Deposition transcripts.

Motions to dismiss.

2011-10-18T02:52:00.000-04:00

Practice point: On a motion to dismiss, pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired.

Student note: The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

Case: Baptiste v. Harding-Marin, NY Slip Op 07193 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Burglar alarms.

Labor Law.

2011-10-17T03:52:00.000-04:00

Practice point: Where a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a landowner may be liable under § 200 if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition.

Student note: To provide constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it.

Case: Schick v. 200 Blydenburgh, LLC, NY Slip Op 07025 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Motions to dismiss.

Default judgments.

2011-10-14T03:04:00.000-04:00

Practice point: A defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action to avoid the entering of a default judgment or to extend the time to answer.

Student note: Defendants’ contention that their insurance company delayed in informing them that it would not defend them is an insufficient excuse for their default.

Case: Integon Natl. Ins. Co. v. Noterile, NY Slip Op 07005 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Labor Law.

Foreclosure actions.

2011-10-13T03:08:00.000-04:00

Practice point: In order to commence the action, a plaintiff must have a legal or equitable interest in the mortgage. A plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced.

Student note: An assignment of a mortgage without assignment of the underlying note or bond is a nullity, and no interest is acquired thereby.

Case: Deutsche Bank Natl. Trust Co. v. Barnett, NY Slip Op 06995 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Default judgments.

Right to a jury trial.

2011-10-12T03:34:00.000-04:00

Practice point: The deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial.

Student note: Once the right has been so lost, it will not be revived by any subsequent dismissal, settlement or withdrawal of the equitable claims.

Case: Bryant v. Broadcast Music, Inc., NY Slip 06991 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Foreclosure actions.

Piercing the corporate veil.

2011-10-11T03:12:00.001-04:00

Practice point: A plaintiff must show that complete domination was exercised over a corporation with respect to the transaction attacked, and that such domination was used to commit a fraud or wrong against the plaintiff, resulting in plaintiff’s injury.

Student note: The corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator's business instead of its own and can be called the other's alter ego.

Case: Campone v. Pisciotta Servrs., Inc., NY Slip Op 06819 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Right to a jury trial.

Court holiday.

2011-10-10T03:39:00.000-04:00

The courts are closed today and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue: Piercing the corporate veil.

Declaratory judgments.

2011-10-07T03:23:00.001-04:00

Practice point: On a motion to dismiss a declaratory judgment action prior to service of an answer, the only issue is whether a cause of action for declaratory relief is set forth, not whether the plaintiff is entitled to a favorable declaration.

Student note: A court may reach the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where no questions of fact are presented. The motion will be taken as one for a declaration in the defendant's favor.

Case: Tilcon v. Town of Poughkeepsie, NY Slip Op 06849 (2d Dept. 2011).

Here is the decision.

Tuesday’s issue:Piercing the corporate veil.

Appealable papers.

2011-10-06T03:04:00.000-04:00

Practice point: The fact that an order appealed from contains language or reasoning that a party deems adverse to its interests does not furnish a basis for standing to take an appeal.

Student note: Despite the dicta that the plaintiffs deem contrary to their interests, they are not aggrieved thereby and, therefore, may not challenge that portion of the order.

Case: Blum v. Valentine, NY Slip Op 06817 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Declaratory judgments.

Bus injuries.

2011-10-05T03:14:00.000-04:00

Practice point: To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was unusual and violent.

Student note: The plaintiff's proof must consist of more than a mere characterization of the stop in those terms by the plaintiff.

Case: Black v. County of Dutchess, NY Slip Op 06816 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Appealable papers.

Sidewalk defects.

2011-10-04T02:58:00.000-04:00

Practice point: Prior written notice of the defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City, pursuant to Administrative Code of City of NY § 7-201[c][2].

Student note: Big Apple maps are independent records and the notice must be traced to the map that is closest in time to the date a defect is alleged to have caused an accident.

Case: Adamson v. City of New York, NY Slip Op 06812 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Bus injuries.

Parental rights.

2011-10-03T03:48:00.000-04:00

Practice point: The petitioner established that the mother abandoned the child by failing to visit or maintain contact with the child for six months prior to the filing of the petition to terminate her parental rights, pursuant to Social Services Law § 384-b.

Student note: The fact that the mother maintained communication with the petitioner regarding her other children, whom she continued to visit, did not negate the petitioner's showing that the mother intended to forgo her parental rights and obligations with respect to the child in question.

Case: Matter of Amaru M. v. Kizwana M., NY Slip Op 06561 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Sidewalk defects.

Service of process.

2011-09-30T03:48:00.000-04:00

Practice point: The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with.

Student note: Where the court orders service by a particular date, all components of service must be accomplished by that date.

Case: Matter of Sharma v. New, NY Slip Op 06563 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Parental rights.

Municipalities Law.

2011-09-29T03:18:00.000-04:00

Practice point: Unlike on a claim pursuant to 42 USC § 1983, a municipality may be vicariously liable on a state law assault and battery claim for torts committed by a police officer under a theory of respondeat superior.

Student note: Public policy bars claims for intentional infliction of emotional distress against a governmental entity.

Case: Eckardt v. City of White Plains, NY Slip Op 06548 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Service of process.

Labor Law.

2011-09-28T03:29:00.001-04:00

Practice point: Plaintiff was injured when he was standing on a temporary wooden step which shifted as he was moving an air tank up a concrete stairway from the basement of the work site to the first floor. The court found an issue of fact as to whether the temporary step was there to aid employees in ascending the stairway to different levels of the site, and thus constituted a device to protect employees against elevation-related risks within the meaning of § 240(1).

Student note: Defendant had general supervisory authority at the work site, which is insufficient to trigger liability under Labor Law § 200 and common-law negligence principles .

Case: Morris v. City of New York, NY Slip Op 06534 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue: Municipalities Law.

Electronic discovery.

2011-09-27T03:08:00.000-04:00

Practice point: A court may establish the method and scope of electronic discovery, pursuant to 22 NYCRR 202.12 [c][3].

Student note: CPLR 3111 and 3122(d) require the requesting party to defray the reasonable production expenses of a nonparty.

Case: Tener v. Cremer, NY Slip Op 06543 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Labor Law.

Labor Law.

2011-09-26T03:30:00.000-04:00

Practice point: When the accident results from a dangerous work-site condition, proof of defendant's supervision and control over plaintiff's work is not required to impose liability under the statute or the common law.

Student note: Plaintiff's 241(6) claim, which was based on an alleged violation of 12 NYCRR 23-1.5, was dismissed because that section is insufficiently specific.

Case: Cordeiro v. TS Midtown Holdings, LLC, NY Slip Op 06457 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue: Electronic discovery.

Summary judgment.

2011-09-23T03:14:00.001-04:00

Practice point: On its motion for summary judgment, the defendant bore the burden of affirmatively demonstrating the merit of its claim or defense.

Student note: The defendant could not satisfy its burden by pointing to gaps in the plaintiff’s proof.

Case: Rubistello v. Bartolini Landscaping, Inc., NY Slip Op 06483 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Labor Law.

A landowner's duty.

2011-09-22T03:24:00.000-04:00

Practice point: Under New York common law, a landowner has a duty to maintain the premises in a reasonably safe condition, taking into account all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.

Student note:A landowner's duty may arise under the common law, by statute, or by regulation.

Case: Alnashmi v. Certified Analytical Group, Inc., NY Slip Op 06465 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Summary judgment.

Discovery.

2011-09-21T03:10:00.001-04:00

Practice point: While CPLR 3101(a) provides for full disclosure of everything material and necessary in the prosecution of an action, the principle of full disclosure does not give a party the right to uncontrolled and unfettered disclosure.

Student note: When a particular discovery demand is inappropriate, the court may make a protective order with respect to that demand, pursuant to CPLR 3103[a], in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice.

Case: D’Adamo v. Saint Dominic’s Home, NY Slip Op 06469 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: A landowner’s duty.

Employment relationships.

2011-09-20T03:09:00.000-04:00

Practice point: The critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results.

Student note: Where the proof on the issue of control presents no conflict in evidence or is undisputed, the matter may properly be determined as a matter of law.

Case: Barak v. Chen, NY Slip Op06466 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Discovery.

Mistakes.

2011-09-19T03:09:00.000-04:00

Practice point: Pursuant to CPLR 5019(a), the court may cure any mistake, defect or irregularity in a judgment, including mathematical errors in calculation.

Student note: A judgment must conform strictly to the court's decision. Where there is an inconsistency between a judgment and the decision on which it is based, the decision controls.

Case: Berry v. Williams, NY Slip Op 06467 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Employment relationships.

Public Officers Law.

2011-09-16T03:24:00.001-04:00

Practice point: Pursuant to § 87(2)(f), an agency may deny access to records which, if disclosed, would endanger the life or safety of any person, on a showing of a possibility of endangerment.

Student note: Access to government records does not depend on the purpose for which the records are sought.

Case: Bellamy v. New York City Police Department, NY Slip Op 06410 (1st Dept. 2011).

Here is the decision.

Monday’s issue: Mistakes.

90-day notices.

2011-09-15T03:09:00.000-04:00

Practice point: Plaintiffs’ failure to provide an excuse for not acting after being served with the notice resulted in the denial of their motion to vacate the dismissal, to restore the action to active status, and to extend the time to file a note of issue.

Student note: Pursuant to CPLR 3216(e), after the notice is served, the court can dismiss an action unless the served party shows a justifiable excuse for the delay and a meritorious cause of action.

Case: Walker v. City of New York, NY Slip Op 06375 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Public Officers Law.