Friday, May 30, 2008

Negligence claims against the State of New York.

Practice point: The State of New York is not an insurer of the safety of its roads and no liability will attach unless the State's alleged negligence in maintaining its roads in a reasonable condition is a proximate cause of the accident.

Case: Carlo v. State of New York, NY Slip Op 04305 (2d Dept. 2008)

Thursday, May 29, 2008

Equitable estoppel.

Practice point: Equitable estoppel will bar the assertion of the Statute of Limitations as an affirmative defense when it was the defendant's wrongdoing which caused the delay between the accrual of the cause of action and the commencement of the legal proceeding.

Case: Bevinetto v. Plotnick, NY Slip Op 04302 (2d Dept. 2008)

Wednesday, May 28, 2008

Conditions precedent.

Practice point: A contractual duty will not be construed as a condition precedent absent clear language showing that the parties intended to make it a such a condition.

Case: Ashkenazi v. Kent South Associates, NY Slip Op 04300 (2d Dept. 2008)

Tuesday, May 27, 2008

Business judgment rule.

Practice point: The business judgment rule, which applies to condominium boards, prohibits judicial inquiry into the actions of the board as long as it acts for the condominium's purpose, within its authority and in good faith.

Case: Acevdeo v. Town N Country Condominium, NY Slip Op 04295 (2d Dept. 2008)

Friday, May 23, 2008

Labor Law § 240(1)

Practice point: An object falling from a minuscule height is not the type of elevation-related injury that the statute was intended to protect against. Moreover, for the statute to be implicated, the object must have been in the process of being hoisted or secured when it fell because of inadequate safety devices.

Case: Cambry v. Lincoln Gardens, NY Slip Op 04047 (2d Dept. 2008)

Thursday, May 22, 2008

Abuse of process.

Practice point: Abuse of process is an intentional tort and, therefore, is governed by a one-year statute of limitations, pursuant to CPLR 215.

Case: Benyo v. Sikorjak, NY Slip Op 04044 (2d Dept. 2008)

Wednesday, May 21, 2008


Practice point: Where there are complex issues of liability and damages, bifurcation is appropriate because it may help in reaching a fair and expeditious resolution, pursuant to 22 NYCRR 202.42[a].

Case: Sommer v. Pierre, NY Slip Op 04219 (1st Dept. 2008)

Tuesday, May 20, 2008

Charging liens.

Practice point: A charging lien is available whether an attorney is discharged or withdraws.

Case: Delaj v. Jameson, NY Slip Op 04203 (1st Dept. 2008)

Monday, May 19, 2008

General jurisdiction.

Practice point: Supreme Court may hear all causes of action unless its jurisdiction has been specifically proscribed.

Case: Colgate v. Broadwall Mgt. Corp., NY Slip Op 04190 (1st Dept. 2008)

Friday, May 16, 2008

Drug Testing of School Bus Drivers.

Practice point: A driver who refuses to take a drug test will be removed immediately from active duty for at least one year and will not return to duty until passing a drug test, pursuant to Administrative Code § 17-610[c].

Case: Matter of Gomez v. New York City Dept. of Educ., NY Slip Op 03956 (1st Dept. 2008)

Thursday, May 15, 2008


Practice point: When a contract for the sale of real property contains a clause specifically setting forth the remedies available to the buyer if the seller is unable to satisfy a stated condition, fundamental rules of contract construction and enforcement require that the buyer's remedies are limited to those expressly provided in the sale contract.

Case: Gindi v Intertrade Internationale Ltd., NY Slip Op 03952 (1st Dept. 2008)

Facts: Paragraph 3 of the rider to the contract of sale provided, in pertinent part, that "[i]f for any reason, except for seller's willful default, the seller shall be unable to convey good and marketable title, subject to and in accordance with this Contract, then the sole obligation of the seller shall be to refund to the purchaser the deposit made hereunder and to reimburse the purchaser for the net cost of title examination." (emphasis added).

There was no evidence of a willful default on the part of defendant, and so plaintiff was not entitled to specific performance of the contract of sale.

Wednesday, May 14, 2008


Practice point: General Obligations Law § 15-108(c) bars a contribution claim by a settling defendant/third-party plaintiff against a nonsettling third-party defendant.

Case: Negron v. Topelson, NY Slip Op 03717 (1st Dept. 2008)

Tuesday, May 13, 2008

Ready, willing and able to buy.

Practice point: While a real estate broker will have earned a commission by producing a purchaser who is ready, willing and able to purchase at the seller's terms, the mere signing of a contract does not establish that the buyer is financially able to complete the transaction and meet the purchase price.

Case: F. Richard Wolff & Son, Inc. v. Tutora, NY Slip Op 03583 (2d Dept. 2008)

Monday, May 12, 2008

Experts' statements.

Practice point: An expert's statement put forward by a party in litigation constitutes an informal judicial admission which is admissible against, although not binding upon, the party that submitted it.

Case: Djetoumani v. Transit, Inc., NY Slip Op 03580 (2d Dept. 2008)

Friday, May 9, 2008

A party's failure to testify.

Practice point: A jury may, but is not required to, draw the strongest inference that the opposing evidence permits against a party who fails to testify at trial.

Case: Brown v. City of New York, NY Slip Op 03574 (2d Dept. 2008)

Thursday, May 8, 2008

Tortious interference.

Practice point: New York does not recognize a cause of action for tortious interference with a prospective inheritance.

Case: Jacobs v. Kay, NY Slip Op 03710 (1st Dept. 2008)

Wednesday, May 7, 2008

An independent contractor's duty to warn.

Practice point: In the absence of a contract for routine or systematic maintenance, an independent contractor or repairer has no duty to install safety devices or to inspect or warn of any purported defects.

Case: Ledesma v. Aragona Mgt. Group, NY Slip Op 03694 (1st Dept. 2008)

Tuesday, May 6, 2008


Practice point: A party which admits fault is not entitled to common-law indemnification.

Case: Kuhn v. Sugar Reef Inc., NY Slip Op 03501 (1st Dept. 2008)

Monday, May 5, 2008

22 NYCRR 130-1.1[c]

Practice point: Conduct is sanctionable as frivolous if it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.

Case: Newman v. Berkowitz, NY Slip Op 03493 (1st Dept. 2008)

Friday, May 2, 2008

Labor Law § 740

Practice point: This whistleblower's statute prohibits an employer from retaliating against an employee who discloses to a supervisor an employer's activity, policy or practice which is in violation of law, rule or regulation and presents a substantial and specific danger to the public health or safety. To sustain this cause of action, plaintiff must offer proof of an actual violation, and not merely the reasonable belief of a possible violation.

Case: Berde v. North Shore-Long Island Jewish Health System, Inc., NY Slip Op 03409 (2d Dept. 2008)

Thursday, May 1, 2008

General Municipal Law § 50-i

Practice point: While infancy automatically tolls the one-year and 90-day statute of limitations for commencing an action against a municipality, infancy alone does not compel the granting of a motion for leave to serve a late notice of claim when the delay is not the product of the infancy.

Case: Arias v. Kings County Hospital Center, NY Slip Op 03407 (2d Dept. 2008)