Wednesday, April 30, 2008

Custody rights.

Practice point: As between a parent and a nonparent, the parent has the superior custody right which cannot be denied unless the nonparent establishes that there is an extraordinary circumstance such as surrender, abandonment, persistent neglect, unfitness, or involuntary disruption of custody over an extended period of time.

Case: Cockrell v. Burke, NY Slip Op 03452 (2d Dept. 2008)

Tuesday, April 29, 2008


Practice point: Property owners have no obligation to maintain a constantly dry floor during a snowstorm, and are not required to cover the entire floor with mats.

Case: Meza v. Consolidated Edison, NY Slip Op 03324 (1st Dept. 2008)

Monday, April 28, 2008

Account stated.

Practice point: The fact that an attorney's invoices are insufficiently itemized does not in itself prevent an account stated from being created.

Case: Zanini v. Schvimmer, NY Slip Op 03317 (1st Dept. 2008)

Friday, April 25, 2008

CPLR 2221[e][2], [3]

Practice point: A motion for leave to renew must be supported by facts, not offered on the prior motion, that would change the prior determination. In addition, the motion must contain a reasonable justification for the failure to present the facts on the prior motion.

Case: Gale v. Lotito, NY Slip Op 03457 (2d Dept. 2008)

Thursday, April 24, 2008

Education Law § 3813

Practice point: A notice of claim against a school district must satisfy the requirements of General Municipal Law § 50-e, including statements of the nature of the claim and the alleged damages or injuries.

Case: Melissa G. v. North Babylon Union Free School District, NY Slip Op 03456 (2d Dept. 2008)

Wednesday, April 23, 2008

Contract law.

Practice point: In adjudicating the rights of parties to a contract, courts may not fashion a new contract under the guise of contract construction. Nor may they imply a condition which the parties chose not to put in their contract.

Case: Camaiore v. Farance, NY Slip Op 03390 (1st Dept. 2008)

Tuesday, April 22, 2008

How far can the Appellate Division reach in its review?

Practice point: The Appellate Division's reach in reviewing the evidence in a nonjury trial is as broad as that of the trial court. However, a fact-finding court's conclusions will not be disturbed on appeal unless they obviously could not have been reached under any fair interpretation of the evidence, especially when the findings rest in large measure on witness credibility.

Case: Kalt v. Ritman, NY Slip Op 03387 (1st Dept. 2008)

Monday, April 21, 2008

CPLR 4401-a

Practice point: A cause of action for medical malpractice based on lack of informed consent must be dismissed if plaintiff does not offer expert testimony establishing that the disclosed information was qualitatively insufficient.

Case: Rodriguez v. New York City Health & Hospitals Corp., NY Slip Op 03383 (1st Dept. 2008)

Friday, April 18, 2008

General Municipal Law § 50-e[1][a],[5]

Practice point: Standing alone, the failure to proffer a reasonable excuse for delay in serving a notice of claim is not fatal to a motion for leave to file a late notice. However, without it, plaintiffs must demonstrate that the City had timely actual notice of the claim and suffered no prejudice by reason of the delay.

Case: Santopietro v. City of New York, NY Slip Op 03125 (1st Dept. 2008)

Thursday, April 17, 2008

Negligent design.

Practice point: Under New York law, a manufacturer cannot be held liable for not adopting an alternative product design which is not shown to retain the inherent usefulness of the product when manufactured according to the more risky, but otherwise lawful, design that actually was used.

Case: Rose v. Brown & Williamson Tobacco Corp., NY Slip Op 03147 (1st Dept.)

Facts: Plaintiff developed lung cancer and neurological damage as the result of decades of cigarette-smoking. In her negligent design claim, plaintiff contended that the tobacco company should have sold only "light" cigarettes with relatively low levels of cancer-causing tar and addictive nicotine. The jury returned a plaintiff's verdict, but the Appellate Division reversed the denial of defendant's motion for a judgment notwithstanding the verdict. While "light" cigarettes were available during the relevant period, plaintiff failed to present any evidence that they appealed to more than a small portion of the cigarette-smoking public. Stated otherwise, the record contained no basis for a finding that "light" cigarettes have the same utility for the vast majority of smokers as do regular cigarettes.

Wednesday, April 16, 2008

Motion to vacate an arbitration award.

Practice point: In light of the arbitrator's conclusions that a teacher in the New York City school system for more than 23 years had successfully undergone treatment for her addiction and that she was "fit to teach," the arbitration award imposing a fine equal to two months' salary, rather than termination, was not irrational and did not violate strong public policy.

Case: City School District of the City of New York v. Lorber, NY Slip Op 03050 (1st Dept. 2008)

Tuesday, April 15, 2008

Labor Law § 240(1)

Practice point: To defeat summary judgment in a case based on violations of the Labor Law, defendant must establish that plaintiff had adequate safety devices available; that plaintiff knew that they were available and that plaintiff was expected to use them; that, for no good reason, plaintiff chose not to do so; and that, but for that choice, plaintiff would not have been injured.

Case: Kosavick v. Tishman Contr. Corp. of N.Y., NY Slip Op 03040 (1st Dept. 2008)

Facts: While performing demolition work, plaintiff was injured when he and his unsecured A-frame ladder were suddenly struck by a section of pipe he had cut, causing him to fall. Plaintiff had not been provided with adequate safety devices and no one was holding the ladder.

Monday, April 14, 2008

CPLR 3025(b)

Practice point: Although leave to amend a pleading is freely granted, it should not be granted simply because it is requested and without appropriate substantiation.

Case: Hoppe v. Board of Directors of the 51-78 Owners Corp., NY Slip Op 02771 (1st Dept. 2008)

Facts: One of the cooperative's shareholders sought to amend the complaint to include a breach of fiduciary duty claim against various past and present members of the cooperative corporation and its board, but did not allege any independent tortious conduct by any individual director.

Friday, April 11, 2008

Administrative Code of the City of New York § 7-201(c)(2)

Practice point: Before liability may be imposed, plaintiff must plead and prove that the City had prior written notice of transitory roadway or walkway conditions such as debris, oil, ice or sand.

Case: Farrell v. City of New York, NY Slip Op 02787 (2d Dept. 2008)

Thursday, April 10, 2008

Contractor liability.

Practice point: A contractor may be held liable for an affirmative act of negligence which results in the creation of a dangerous condition on a public street or sidewalk.

Case: Cino v. City of New York, NY Slip Op 02781 (2d Dept. 2008)

Wednesday, April 9, 2008

CPLR 203(a)

Practice point: The mere filing of a motion for leave to amend the complaint to name an additional defendant is not itself the interposition of the claim, within the meaning of the statute, and the amended complaint must be timely served in order to have personal jurisdiction.

Case:Gomez v. City of New York, NY Slip Op 02764 (1st Dept. 2008)

Tuesday, April 8, 2008

Unjust enrichment.

Practice point: A plaintiff adequately states a cause of action for unjust enrichment when alleging that, on behalf of the business venture he entered into with defendant to market certain properties, he actively marketed the properties, and commissions were generated and paid to defendant, who ultimately diverted them, depriving plaintiff of his share of the commissions.

Case: Segal v. Cooper, NY Slip Op 02758 (1st Dept. 2008)

Monday, April 7, 2008

CPLR 7503(c)

Practice point: The timeliness of an application to stay arbitration is measured from the service of the demand to arbitrate, and not from service of an attorney's letter giving notice of an intention to arbitrate a claim.

Case: State Farm v. Scott, NY Slip Op 02755 (1st Dept. 2008)

Friday, April 4, 2008

Slander per se.

Practice point: Informing the parents of preschoolers that their children's teacher has been terminated is reasonably susceptible to a defamatory meaning and is slanderous per se because it directly implies that she had done something so egregious that it made her unfit to practice her profession even one more day.

Case: Lipman v. Ionescu, NY Slip Op 02745 (1st Dept. 2008)

Thursday, April 3, 2008

Negligent hiring or retention.

Practice point: Recovery on a negligent hiring or retention theory requires a showing that the employer had notice of the relevant tortious propensities of the wrongdoing employee.

Case: Coffey v. City of New York, NY Slip Op 02689 (1st Dept. 2008)

Facts: Plaintiff and decedents were injured when their automobile was struck by a vehicle driven by a City Corrections officer later determined to be intoxicated. He had been sent for inpatient alcohol rehabilitation three years earlier, due to persistent lateness and absenteeism. After release, he failed to continue treatment on an outpatient basis. His employment record revealed various infractions and a prior accident on the job, but with no alcohol involvement. He testified at deposition that he had been given two drinks by a fellow Corrections officer while on the job that night, and after work he met two other officers and consumed two beers. The accident occurred two hours after he left work, as he headed home.

The court found no evidence that the City knew of his propensity for drunk driving, and it could not reasonably have foreseen that he would drive while under the influence of alcohol.

Wednesday, April 2, 2008

Court of Claims Act § 10[6]

Practice point: The Court of Claims has no discretion to grant leave to file a late claim if the action would be time-barred.

Case: Sands v. State of New York, NY Slip Op 02682 (1st Dept. 2008)

Tuesday, April 1, 2008

Medical Malpractice

Practice point: On a motion for summary judgment in a medical malpractice action, a defendant physician has the burden of establishing the absence of any departure from good and accepted medical practice, or, if there was a departure, that it did not injure plaintiff.

Case: Germaine v. Yu, NY Slip Op 02551 (2d Dept. 2008)

Facts: Shortly before noon, plaintiff arrived at the emergency room, complaining of abdominal pain, nausea, and constipation. An attending physician examined plaintiff at 12:45, and a resident examined her at approximately 1:00 o'clock. Several tests were ordered, and, before the tests were completed, the resident's shift ended and he left the hospital. Later, after additional testing, plaintiff was discharged, with a diagnosis of diverticulitis. Three days later, she was admitted to another hospital, where she was diagnosed with peritonitis and a perforated sigmoid colon, and underwent surgery.

The attending physician demonstrated that, when he left the hospital, he transferred responsibility for plaintiff's care to another attending physician, and was not responsible for any departures from accepted medical practice that occurred thereafter in either the supervision of the resident or the decision to discharge plaintiff.