Friday, November 28, 2008

Constructive trusts.

Practice point: A cause of action to impose a constructive trust is governed by a six-year statute of limitations, which begins to accrue on the happening of the wrongful act giving rise to a duty of restitution.

Practitioners should note that, in determining what triggers the statute, wrongfully acquired property is held adversely from the date of acquisition. However, if the constructive trustee wrongfully withholds lawfully acquired property, it is held adversely from the date the trustee breaches or repudiates the agreement to transfer the property.

Case: Auffermann v. Distl, NY Slip Op 08689 (2d Dept. 2008)

The opinion is here.

Thursday, November 27, 2008

Happy Thanksgiving.

Best wishes for a happy Thanksgiving to you and your family, and thank you for reading New York Law Notes year-round. We will be back tomorrow with another post.

Wednesday, November 26, 2008


Practice point: A public official-plaintiff’s claim will be dismissed unless it is alleged that defendant acted with actual malice, which means with knowledge that the statements at issue were false, or with reckless disregard of whether they were false. “Reckless disregard” is a term of art which means a high degree of awareness of probable falsity.

Practitioners should note that a private person-plaintiff may plead the lower standard of gross irresponsibility.

Case: Rivera v. Time Warner Inc., NY Slip Op 08539 (1st Dept. 2008)

The opinion is here.

Tuesday, November 25, 2008

Equitable actions.

Practice point: If the primary nature of a case is equitable and plaintiff's claimed damages are merely incidental thereto, there is no right to a jury trial, pursuant to CPLR 4101.

Practitioners should note that a counterclaim, even with a demand for damages, also is equitable in nature if it relates directly to the injunctive relief sought by plaintiff’s complaint.

Case: Ingenuit, Ltd. v. Harriff, NY Slip Op 08456 (2d Dept. 2008)

The opinion is here.

Monday, November 24, 2008

Notice of pendency.

Practice point: CPLR 6514(a) requires cancellation of a notice of pendency if service of a summons has not been completed within 30 days after the notice is filed, pursuant to CPLR 6512.

Practitioners should note that in multi-defendant cases, there is sufficient service if it is timely made on any one defendant with an ownership interest in the subject property.

Case: Deans v. Sorid, NY Slip Op 08448 (2d Dept. 2008)

The opinion is here.

Friday, November 21, 2008

Labor Law.

Practice point: Ladders are within the scope of § 200, which is a codification of the common-law duty of property owners and general contractors to provide workers with a safe place to work.

Practitioners should note that liability under the statute is governed by common-law negligence principles.

Case: Chowdhury v. Rodriguez, NY Slip Op 08441 (2d Dept. 2008)

The opinion is here.

Thursday, November 20, 2008

Leave to amend.

Practice point: In exercising its discretion to grant leave to serve an amended pleading, the court will consider how long the amending party was aware of the facts on which the motion is predicated; whether a reasonable excuse for the delay is offered; and whether the other side will be prejudiced.

Practitioners should note that where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave to amend will be denied.

Case: Brooks v. Robinson, NY Slip Op 08439 (2d Dept. 2008)

The opinion is here.

Wednesday, November 19, 2008

Settling claims.

Practice point: An attorney has no implied power by virtue of the general retainer, standing alone, to compromise or settle a client's claim.

Practitioners should note that a general release and stipulation of discontinuance will be vacated, and the case restored, on evidence that plaintiff neither authorized nor consented to the settlement.

Case: Blakney v. Leathers, NY Slip Op 08437 (2d Dept. 2008)

The opinion is here.

Tuesday, November 18, 2008

Vehicle and Traffic Law §§ 1143 and 1160(e).

Practice point: A driver is not obligated to anticipate that a vehicle parked on the shoulder of a road will suddenly and unexpectedly move into a travel lane.

Practitioners should note that such an event will likely implicate the emergency doctrine, and the driver’s staying in his or her own lane and applying the brakes will be reasonable as a matter of law under this circumstance which is not of the driver’s own making.

Case: Albinowski v. Hoffman, NY Slip Op 08434 (2d Dept. 2008)

The opinion is here.

Monday, November 17, 2008

Service of process.

Practice point: A plaintiff establishes personal jurisdiction, pursuant to CPLR 308(2), when the process server delivered the summons with notice to a suitable person at defendant's place of business, and this person accepted the documents before handing them back and directing the process server to place them in defendant's mailbox.

Practitioners should note that service was valid even though plaintiff did not list the individual defendant's name on the mailing envelope, since the summons gave sufficient notice to defendant, an attorney, that he was being sued in his individual capacity.

Case: Pressley v. Shneyer, NY Slip Op 08412 (1st Dept. 2008)

The opinion is here.

Friday, November 14, 2008

Gift certificates.

Practice point: General Business Law § 396-i regulates gift certificates and gift cards, and, pursuant to i[3], requires that the terms and conditions shall be clearly and conspicuously stated thereon, including whether any fees are assessed against the balance.

Practitioners should note that while the statute does not expressly provide for a private right of action, there is nothing in the statutory language to indicate that the Legislature intended to abrogate any common-law remedy arising from alleged deceptive or improper practices concerning gift certificates or cards. In addition, a § 349 cause of action may be maintained as to all deceptive acts or practices declared to be unlawful, regardless of any other State statute.

Case: Llanos v. Shell Oil Co., NY Slip Op 08099 (2d Dept. 2008)

The opinion is here.

Thursday, November 13, 2008

Commencing an action.

Practice point: The commencement of an action by plaintiff’s filing a notice of petition and a petition with a verified complaint is jurisdictionally sufficient.

Practitioners should note that plaintiff's confusion between the form of an action and the form of a special proceeding is not a ground for dismissal.

Case: Ling Fei Sun v. City of New York, NY Slip Op 08098 (2d Dept. 2008)

The opinion is here.

Wednesday, November 12, 2008

Municipal liability.

Practice point: A municipality owes to the public the absolute duty of keeping its streets in a reasonably safe condition.

Practitioners should note that, when it comes to traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision, and liability requires proof that the State's traffic design plan evolved without adequate study or lacked reasonable basis.

Case: Fan Guan v. State of New York, NY Slip Op 08089 (2d Dept. 2008)

The opinion is here.

Tuesday, November 11, 2008

Medical malpractice.

Practice point: To establish a prima facie case on liability, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred; (2) that the defendant breached that standard of care; and (3) that the breach was the proximate cause of plaintiff’s injury.

Practitioners should note that expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause.

Case: Deadwyler v. North Shore Univ. Hosp. at Plainview, NY Slip Op 08087 (2d Dept. 2008)

The opinion is here.

Monday, November 10, 2008

Collateral estoppel.

Practice point: A party will be estopped from relitigating an issue which was clearly raised in a prior action and which was decided against that party.

Practitioners should note that, in order to invoke the doctrine, the identical issue must necessarily have been decided in the prior action and it must be decisive of the present action. In addition, the party to be precluded must have had a full and fair opportunity to contest the prior determination.

Case: Comprehensive Med. Care of N.Y., P.C. v. Hausknecht, NY Slip Op 08084 (2d Dept. 2008)

The opinion is here.

Friday, November 7, 2008

Exposure to toxic substances.

Practice point: To maintain a cause of action for negligent infliction of emotional distress following exposure to a toxic substance, a plaintiff must establish both that there was exposure to a disease-causing agent and that there is a ‘rational basis' for plaintiff’s fear of contracting a disease.

Practitioners should note that the Court has construed ‘rational basis’ to mean the clinically-demonstrable presence of a toxin in plaintiff's body, or some other indication of a toxin-induced disease.

Case: Cleary v. Wallace Oil Co., Inc., NY Slip Op 08083 (2d Dept. 2008)

The opinion is here.

Thursday, November 6, 2008

General Obligations Law.

Practice point: An agreement to exempt a lessor from its own negligence is void and unenforceable, pursuant to § 5-321.

Practitioners should note that where the liability is to a third party, the statute does not preclude enforcement of an indemnification provision in a commercial lease negotiated at arm's length between two sophisticated parties, when coupled with an insurance procurement requirement.

Case: Castano v. Zee-Jay Realty Co., NY Slip Op 08081 (2d Dept. 2008)

The opinion is here.

Wednesday, November 5, 2008

Notice of Claim.

Practice point: Leave to file a late Notice of Claim will be denied when, after a seven-month delay, petitioner fails to identify any documents, either from the police investigation or from the criminal proceedings, which would assist respondent in investigating a claim of negligence.

Pratcitioners should note that the fact that there was media coverage of the claim-related incident does not establish that respondent should have known about the incident or should have anticipated a claim of negligence.

Case: Matter of Bailey v. City of New York Hous. Auth., NY Slip Op 08025 (1st Dept. 2008)

The opinion is here.

Tuesday, November 4, 2008

Education Law.

Practice point: A petitioner's challenge to the termination of probationary employment under a physical education license will be dismissed if petitioner fails to establish that the termination was for a constitutionally impermissible purpose, in violation of a statute, or otherwise done in bad faith.

Practitioners should note that, even if petitioner were not given the 60-day statutory notice, which, pursuant to Education Law
§ 2573[1][a]), would require one day's pay for each day the notice is late, petitioner is not entitled to the payment when, on termination, petitioner immediately resumed duties at the same school and at the same rate of pay under the common branch license under which petitioner was fully tenured.

Case: Curcio v. New York City Dept. of Educ., NY Slip Op 08020 (1st Dept. 2008)

The opinion is here.

Monday, November 3, 2008

Municipal liability.

Practice point: The City is not a proper party to an action where plaintiff sustained injuries as a result of tripping and falling on public school grounds.

Practitioners should note that, although the 2002 amendments to the Education Law (L 2002, ch 91) give the mayor greater control over education and limit the Department of Education’s powers, they do not establish a basis to hold the City liable for this plaintiff’s personal injuries.

Case: Bailey v. City of New York, NY Slip Op 08003 (1st Dept. 2008)

The opinion is here.