Tuesday, March 31, 2009

Notice of claim.

Practice point: Plaintiff's unverified letters and emails to the Department of Education do not constitute a notice of claim, within the meaning of Education Law § 3813[1].

Practitioners should note that plaintiff's application for leave to file a late notice of claim will be denied as untimely if it is made beyond the one-year statute of limitations.

Case: Gastman v. Department of Educ. of City of New York, NY Slip Op 01693 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Administrative Law.

Monday, March 30, 2009


Practice point: The owner of an improperly parked car may be held liable to a plaintiff who is injured by the negligent driver of another vehicle.

Practitioners should note that liability requires a finding on foreseeability and proximate cause.

Case: Yavkina v. New York City Police Dept., NY Slip Op 01640 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Notice of claim.

Friday, March 27, 2009

Attorney-client privilege.

Practice point: Codified in CPLR 4503(a), the privilege belongs to the client and attaches if information is disclosed in confidence, for the purpose of facilitating legal advice or services, and in the course of a professional relationship.

Practitioners should note that communications which are shared with a third party generally are not privileged.

Case: Sieger v. Zak, NY Slip Op 01636 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Negligence.

Thursday, March 26, 2009

Res judicata.

Practice point: Once a claim is concluded, all other claims arising out of the same transaction or series of transactions are barred, even if based on different theories or if seeking a different remedy.

Practitioners should note that it is sufficient if it appears from the judgment that the dismissal was on the merits.

Case: QFI, Inc. v. Shirley, NY Slip Op 01632 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Attorney-client privilege.

Wednesday, March 25, 2009

Medical malpractice.

Practice point: The limitations period is stayed when the course of treatment has run continuously and is related to the same original condition or complaint.

Practitioners should note that the continuous treatment doctrine may be applied to a physician who has left a medical group when there has been subsequent treatment by group members.

Case: Mule v. Peloro, NY Slip Op 01626 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Res judicata.

Tuesday, March 24, 2009

Assumption of the risk.

Practice point: While generally the risk is not assumed until play has begun, it is not always necessary for the game to have been formally underway.

Practitioners should note that there is no owner liability where an injury results directly from the course of action plaintiff decided to pursue.

Case: Marino v. Bingler, NY Slip Op 01623 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Medical malpractice.

Monday, March 23, 2009

Attorneys' fees.

Practice point: In a domestic relations matter, an attorney may not contract for, charge or collect a fee which is contingent on securing a divorce or which in any way is determined by reference to the amount of maintenance, support, equitable distribution or property settlement.

Practitioners should note that, as a matter of public policy, courts give particular scrutiny to attorney-client fee arrangements, and the attorney has the burden to show that the fee agreement is fair, reasonable and fully understood by the client.

Case: Law Off. of Howard M. File, Esq., P.C. v, Ostashko, NY Slip Op 01622 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Assumption of the risk.

Friday, March 20, 2009

Motion practice.

Practice point: A motion to dismiss will be granted, pursuant to
22 NYCRR 202.27(b), when plaintiff fails to provide a reasonable excuse for failing to appear on the trial start date, when the parties had stipulated to the date and to no further adjournments.

Practitioners should note the insufficiency of the excuse that, for the week set for trial, plaintiff was unable to get off work, when plaintiff was able to get time off to attend a family event. Aggravating factors might include the lengthy history of the case, including several prior motions to restore.

Case: Harris v. Bliss, NY Slip Op 01594 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Attorneys’ fees.

Thursday, March 19, 2009

Motion practice.

Practice point: A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law, pursuant to CPLR 2221[e][2].

Practitioners should note that, absent circumstances set forth in CPLR 5015, the motion must be made prior to the entry of a final judgment or before the time to appeal has expired.

Case: Dinallo v. DAL Elec., NY Slip Op 01607 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Wednesday, March 18, 2009

Motion practice.

Practice point: A defendant waives late service by accepting and retaining the complaint, without objection, and serving an answer with a demand for a bill of particulars and a demand for discovery and inspection, before moving to dismiss pursuant to CPLR 3012(b).

Practitioners should note that no appeal lies from an order denying a motion for leave to reargue.

Case: Betancourt v. Delta Airlines, Inc., NY Slip Op 01600 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Tuesday, March 17, 2009

Labor Law.

Practice point: Owners of one- and two-family homes who do not direct or control the work are statutorily exempt from liability under § 240, which otherwise imposes a nondelegable duty to provide scaffolding and other protection to persons working in construction, excavation, or demolition.

Practitioners should note that the homeowner's exemption does not apply where the construction is effectively a commercial enterprise, such as building a new home for sale.

Case: Andreas v. Catskill Mtn. Lodging, LLC, NY Slip Op 01597 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Monday, March 16, 2009

Withdrawing as counsel.

Practice point: When an attorney terminates representation and there has been no misconduct, no discharge for just cause and no unjustified abandonment, the attorney preserves the right to enforce a statutory charging lien.

Practitioners should note that if the attorney’s moving papers do not specify the ground for the relief sought, an evidentiary hearing must be held to determine whether the attorney withdrew with just cause.

Case: Ramirez v. Willow Ridge Country Club, Inc., NY Slip Op 01525 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Friday, March 13, 2009

Sealed records.

Practice point: The statutory protection of records which would otherwise be kept sealed, pursuant to Criminal Procedure Law
§ 160.50, is waived by a party who affirmatively puts the underlying conduct at issue in a civil suit.

Practitioners should note that the statutory privilege may not be used to gain an advantage in a civil action allgeging malicious prosecution based on the underlying criminal proceeding.

Case: Best v. 2170 5th Ave. Corp., NY Slip Op 01524 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Withdrawing as counsel.

Thursday, March 12, 2009


Practice point: A party's pleading may be struck as a sanction for the intentional destruction of key evidence.

Practitioners should note that if the destroyed evidence is not crucial to plaintiff's case, a lesser sanction is appropriate, at the discretion of the court.

Case: Kugel v. City of New York, NY Slip Op 01521 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Sealed records.

Wednesday, March 11, 2009

Dog bites.

Practice point: To recover in strict liability, a plaintiff must prove that the dog had vicious propensities and that the owner knew or should have known of them.

Practitioners should note that a "Beware of Dog" sign does not raise an issue of fact absent evidence that, prior to the incident, the dog exhibited any vicious tendencies.

Case: Palumbo v. Nikirk, NY Slip Op 01454 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Spoilation.

Tuesday, March 10, 2009

Personal jurisdiction.

Practice point: New York courts may exercise jurisdiction over a defendant who transacts business in New York or who contracts anywhere to supply goods or services here, pursuant to CPLR 302[a][1]), even where defendant has never physically entered the state, so long as defendant's New York activities were purposeful and there is a substantial relationship between those activities and plaintiff’s claim.

Practitioners should note that exercising jurisdiction must not be inconsistent with traditional notions of due process, fair play, and substantial justice, pursuant to International Shoe.

Case: Bogal v. Finger, NY Slip Op 01435 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Dog bites.

Monday, March 9, 2009

Service of process.

Practice point: Defendants’ attorney served on plaintiff’s attorney a notice of appearance in response to a courtesy copy of the summons, but, since defendants themselves had not yet been served, the notice of appearance was a nullity.

Practitioners should note that unless a defendant designates its attorney as its agent for service, pursuant to CPLR 318, defendant’s attorney may not accept service on defendant’s behalf.

Case: Spivak v. Zilberman, NY Slip Op 01400 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Personal jurisdiction.

Friday, March 6, 2009

Tortious interference with prospective employment.

Practice point: To establish this cause of action, a plaintiff must demonstrate the existence of a job offer, and must submit evidence sufficient to raise a fact-issue as to whether defendant acted with the sole purpose of harming plaintiff or engaged in improper or unlawful conduct.

Practitioners should note that there is a “but for” standard regarding the effect of defendant’s bad acts.

Case: Murphy v. City of New York, NY Slip Op 01346 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Service of process.

Thursday, March 5, 2009


Practice point: An action may be dismissed, pursuant to CPLR 3126, where a party disobeys a discovery order or willfully fails to disclose information which the court finds should have been disclosed.

Practitioners should note that parties who do not respond expeditiously to discovery notices should be afforded reasonable latitude before dismissal, and the complaint should not be dismissed unless the noncompliance was willful, contumacious or in bad faith.

Case: Shure v. New York Cruise Lines, Inc., NY Slip Op 01335 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Tortious interference with prospective employment.

Wednesday, March 4, 2009

Settlement agreements.

Practice point: Emails exchanged between counsel, which contained their printed names at the end, constitute signed writings, pursuant to CPLR 2104, within the meaning of the statute of frauds, and will entitle plaintiff to a judgment based on the settlement agreement, pursuant to CPLR 5003-a(e).

Practitioners should note that defendant’s subsequent refusal to execute form releases and a stipulation of discontinuance does not invalidate the settlement agreement.

Case: Williamson v. Delsener, NY Slip 01333 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Discovery.

Tuesday, March 3, 2009

School Law.

Practice point: In order to commence a tort action against a school district, a claimant must serve a notice of claim within 90 days of the alleged injury, pursuant to Education Law § 3813[2] and General Municipal Law §§ 50-e[1][a]; 50-i[1].

Practitioners should note that, pursuant to General Municipal Law § 50-e(5), the court may, in its discretion, extend the time to serve a notice of claim.

Case: Grogan v. Seaford Union Free School Dist., NY Slip Op 01197 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Settlement agreements.

Monday, March 2, 2009


Practice point: The assertion of the privilege against self-incrimination is an insufficient basis for precluding discovery.

Practitioners should note that, even if a criminal prosecution is pending, the court is not obligated to stay discovery in a civil matter.

Case: Fortress Credit Opportunities I LP v. Netschi, NY Slip Op 01181 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: School Law.