Friday, December 30, 2011

Fee forfeitures.

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.

Thursday, December 29, 2011

Breach of fiduciary duty.

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.

Wednesday, December 28, 2011

Premature summary judgment motions.

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.

Tuesday, December 27, 2011

Leave to amend.

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.

Monday, December 26, 2011

Court holiday.

The courts are closed today to mark the Christmas holiday.

Tomorrow's issue is leave to amend.

Friday, December 23, 2011

Reckless disregard.

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).

Tuesday’s issue: Leave to amend.

Thursday, December 22, 2011

Elevator company liability.

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.

Wednesday, December 21, 2011

Service on Health and Hospitals Corporation.

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.

Tuesday, December 20, 2011

Escrow agency.

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.

Monday, December 19, 2011


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.

Friday, December 16, 2011

Medical records.

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).

Monday’s issue: Summations.

Thursday, December 15, 2011

The emergency doctrine.

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).

Tomorrow’s issue: Medical records.

Wednesday, December 14, 2011


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).

Tomorrow’s issue: The emergency doctrine.

Tuesday, December 13, 2011

Affirmative defenses.

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).

Tomorrow’s issue: Depositions.

Monday, December 12, 2011

Striking an answer.

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).

Tomorrow’s issue: Affirmative defenses.

Friday, December 9, 2011

Day care liability.

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).

Monday’s issue: Striking an answer.

Thursday, December 8, 2011

Landowner liability.

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.

Wednesday, December 7, 2011

Fee disputes.

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. BaroukhianNY Slip Op 08284 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue:  Landowner’s liability.

Tuesday, December 6, 2011

Legal malpractice.

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.

Monday, December 5, 2011

Late notice of claim.

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.

Friday, December 2, 2011

Labor Law.

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.

Thursday, December 1, 2011

A binding signature.

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.

Wednesday, November 30, 2011

Title to a motor vehicle.

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.

Tuesday, November 29, 2011

Vacating a default.

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.

Monday, November 28, 2011

The relation-back doctrine.

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).

Tomorrow’s issue: Vacating a default.

Friday, November 25, 2011

Pre-employment checks.

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).

Monday’s issue:  The relation-back doctrine.

Thursday, November 24, 2011

Happy Thanksgiving.

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

Tomorrow’s issue is pre-employment checks.

Wednesday, November 23, 2011

A property owner's duty to protect.

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.

Tuesday, November 22, 2011

Legal malpractice.

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.

Monday, November 21, 2011

Respondeat superior.

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.

Friday, November 18, 2011

Proper service.

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.

Thursday, November 17, 2011


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.

Wednesday, November 16, 2011

Caveat emptor.

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.

Tuesday, November 15, 2011

Unlicensed contractors.

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.

Monday, November 14, 2011

Preliminary injunctions.

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.

Friday, November 11, 2011

Veterans Day.

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.

Thursday, November 10, 2011

Judgment as a matter of law.

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.

Wednesday, November 9, 2011

Time is of the essence.

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.

Tuesday, November 8, 2011

Election Day.

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.

Monday, November 7, 2011


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.

Friday, November 4, 2011

Slips and falls.

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.

Thursday, November 3, 2011

Labor Law.

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.

Wednesday, November 2, 2011


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.

Tuesday, November 1, 2011

Summary judgment.

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.

Monday, October 31, 2011


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.

Friday, October 28, 2011

Default judgments.

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.

Thursday, October 27, 2011

Labor Law.

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.

Wednesday, October 26, 2011


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.

Tuesday, October 25, 2011

Promissory notes.

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.

Monday, October 24, 2011

Custody Agreements.

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.

Friday, October 21, 2011

Requesting an admission.

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.

Thursday, October 20, 2011

Deposition transcripts.

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.

Wednesday, October 19, 2011

Burglar alarms.

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.

Tuesday, October 18, 2011

Motions to dismiss.

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).

Tomorrow’s issue: Burglar alarms.

Monday, October 17, 2011

Labor Law.

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).

Tomorrow’s issue: Motions to dismiss.

Friday, October 14, 2011

Default judgments.

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).

Monday’s issue: Labor Law.

Thursday, October 13, 2011

Foreclosure actions.

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).

Tomorrow’s issue: Default judgments.

Wednesday, October 12, 2011

Right to a jury trial.

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.

Tuesday, October 11, 2011

Piercing the corporate veil.

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).

Tomorrow’s issue: Right to a jury trial.

Monday, October 10, 2011

Court holiday.

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

Tomorrow's issue: Piercing the corporate veil.

Friday, October 7, 2011

Declaratory judgments.

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.

Thursday, October 6, 2011

Appealable papers.

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.

Wednesday, October 5, 2011

Bus injuries.

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.

Tuesday, October 4, 2011

Sidewalk defects.

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.

Monday, October 3, 2011

Parental rights.

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).

Tomorrow’s issue: Sidewalk defects.

Friday, September 30, 2011

Service of process.

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.

Thursday, September 29, 2011

Municipalities Law.

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).

Tomorrow’s issue: Service of process.

Wednesday, September 28, 2011

Labor Law.

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).

Tomorrow's issue: Municipalities Law.

Tuesday, September 27, 2011

Electronic discovery.

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).

Tomorrow’s issue: Labor Law.

Monday, September 26, 2011

Labor Law.

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.

Friday, September 23, 2011

Summary judgment.

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).

Monday’s issue: Labor Law.

Thursday, September 22, 2011

A landowner's duty.

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).

Tomorrow’s issue: Summary judgment.

Wednesday, September 21, 2011


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.

Tuesday, September 20, 2011

Employment relationships.

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.

Monday, September 19, 2011


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).

Tomorrow’s issue: Employment relationships.

Friday, September 16, 2011

Public Officers Law.

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.

Thursday, September 15, 2011

90-day notices.

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).

Tomorrow’s issue: Public Officers Law.

Wednesday, September 14, 2011

Article 78 proceedings.

Practice point: Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and only when a court acts without jurisdiction or in excess of its authorized powers.

Student note: The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when there is a clear legal right to the relief sought.

Case: Matter of Walter v. Neary, NY Sip Op 06386 (2d Dept. 2011).

Tomorrow’s issue:  90-day notices.

Tuesday, September 13, 2011

Attorney discipline.

Practice point: Intentional conversion of escrow funds requires disbarment, absent extremely unusual mitigating circumstances.

Student note: The fact that the attorney intended to repay, or actually repays, converted funds does not negate a finding of venal intent.

Case: Matter of Squitieri, NY Slip Op 06418 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Article 78 proceedings.

Monday, September 12, 2011

Assumption of the risk.

Practice point: The dangers associated with players swinging bats during warm-ups are inherent in the sports of baseball and softball.

Student note: If the accident occurs so suddenly that even the most intense supervision could not have prevented it, lack of supervision cannot be the proximate cause of the injury.

Case: Navarro v. City of New York, NY Slip Op 06412 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue:  Attorney discipline.

Friday, September 9, 2011

Unconscionable contracts.

Practice point: A contract is unconscionable if there is an absence of meaningful choice on the part of one of the parties, together with terms which are unreasonably favorable to the other party.

Student Note: If there is a question as to a contract’s unconscionability, there must be a hearing regarding the circumstances of the contract’s signing, and the setting, purpose and effect of the disputed terms.

Case: Simar Holding Corp. v. GSC, NY Slip Op 06346 (2d Dept. 2011).

Monday’s issue: Assumption of the risk.

Thursday, September 8, 2011

Judgment liens.

Practice point: Judgment liens and other secured interests ordinarily survive bankruptcy.

Student note:  A creditor need not object to the debtor's discharge in bankruptcy in order to preserve its lien, since the discharge does not affect the lien.

Nelson, L.P. v. Jannace, NY Slip Op 06373 (2d Dept. 2011).

Tomorrow: Unconscionable contracts.

Wednesday, September 7, 2011

Workers' Compensation Law.

Practice point: The statute provides the exclusive remedy for an employee seeking damages for unintentional injuries incurred in the course of employment.

Student note: An intentional tort may give rise to a cause of action outside the ambit of the statute, but the complaint must allege an employer’s deliberate act directed at causing harm to this particular plaintiff.

Kruger v. EMFT, LLC, NY Slip Op 06369 (2d Dept. 2011).

Here is the decision.

Tomorrow: Judgment liens.

Tuesday, September 6, 2011

Res judicata.

Practice point: The doctrine gives binding effect to the judgment of a court of competent jurisdiction, and prevents the parties, and those in privity with them, from relitigating any questions that were necessarily decided therein.

Student note: To establish privity, the party raising a res judicata defense must demonstrate a connection between the party to be precluded and a party to the prior action, such that the nonparty's interests can be said to have been previously represented.

Case: Farren v. Lisogorsky, NY Slip Op 06366 (2d Dept. 2011).

Here is the decision.

Tomorrow: Workers’ Compensation Law.

Monday, September 5, 2011

Court holiday.

The courts are closed today in honor of Labor Day, and so there is no post here on NEW YORK LAW NOTES.

Tomorrow's issue: Res judicata.

Friday, September 2, 2011

Legal malpractice.

Practice point: The fact that defendant-attorney received a telephone call from plaintiffs' new counsel, and provided the requested information, did not toll the running of the statute of limitations until that date.

Student note: A cause of action may sound in fraud if it is based on tortious conduct independent of the alleged malpractice, here, an alleged misrepresentation as to defendant’s eligibility to practice in Florida.

Case: Rupolo v. Fish, NY Slip Op 06343 (2d Dept. 2011).

Here is the decision.

Tuesday’s issue: Res judicata.

Thursday, September 1, 2011

Attorney affirmations.

Practice point: An attorney is entitled to serve and file an affirmation, instead of an affidavit, pursuant to CPLR 2106.

Student note: The affirmation is without effect, however, if the attorney is also a party.

Case: John Harris, P.C. v. Krauss, NY Slip Op 06297 (1st Dept. 2011).

Tomorrow: Legal malpractice.

Wednesday, August 31, 2011

Striking a pleading.

Practice point: On a motion to strike a pleading, pursuant to CPLR 3126, for failure to comply with a discovery order, movant must show that the non-disclosure was willful, contumacious or in bad faith.

Student note: Willful or contumacious behavior is inferred from the non-compliance with the court order, absent a sufficient excuse.

Case: Henderson-Jones v. New York, NY Slip Op 06327 (1st Dept. 2011).

Here is the decision.

Tomorrow: Attorney affirmations.

Tuesday, August 30, 2011

Employment discrimination.

Practice point: Pursuant to Human Rights Law (Executive Law article 15), persons aggrieved by certain forms of unlawful discrimination (see Executive Law §§ 296, 296-a, 296-b) may seek relief in an administrative proceeding, or in a court action.
Student note: Pursuant to Executive Law § 297(5), if relief is sought through an administrative proceeding, the complaint must be filed within one year after the alleged discriminatory practice.
Case: Matter of Murphy v. Kirkland, NY Slip Op06271 (2d Dept. 2011).
Tomorrow’s issue: Striking a pleading.

Monday, August 29, 2011

Attorney discipline.

Practice point: The federal felony of fraud by wire, in violation of 18 USC § 1343, has been held to be essentially similar to the New York felonies of grand larceny in the second degree, under Penal Law § 155.40, and scheme to defraud in the first degree, under Penal Law § 190.65.
Student note: By virtue of a felony conviction, the respondent was automatically disbarred and ceased to be an attorney, pursuant to Judiciary Law § 90(4)(a).
Case: Matter of Caputo, NY Slip Op 06262 (2d Dept. 2011).
Tomorrow’s issue: Employment discrimination.

Friday, August 26, 2011

Easements by prescription.

Practice point: An easement by prescription is generally demonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use of the property for the required period.

Student note: The standard of proof is clear and convincing.

Case: Vitiello v. Merwin, NY Slip Op 06260 (2d Dept. 2011).

Here is the decision.

Monday’s issue:  Attorney discipline

Thursday, August 25, 2011

Building permits.

Practice point: A permit which is issued in contravention of zoning laws is invalid.

Student note:  Where the permit is issued either because of the applicant’s misrepresentation or the municipality’s mistake, it can be revoked.

Case: Wappingers Falls v. Tomlins, NY Slip Op 06259 (2d Dept. 2011).

Tomorrow’s issue:  Easements by prescription.

Wednesday, August 24, 2011

Settlement agreements.

Practice point: The agreement does not terminate the action unless there is an express stipulation of discontinuance, or an entry of judgment in accordance with the settlement terms.

Student note: Absent termination, the court retains its supervisory power over the action and may lend aid to a party who moves for enforcement.

Case: Palmieri v. Town of Babylon, NY Slip 06254 (2d Dept. 2011).

Tomorrow’s issue: Building permits.

Tuesday, August 23, 2011


Practice point: A demand to change venue based on the designation of an improper county, pursuant to CPLR 510[1], must be served with the answer or before the answer is served.

Student note: Since defendant did not timely serve, he was not entitled to the change of venue as of right.

Case: Brash v. Richard, NY Slip Op 06210 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Settlement agreements.

Monday, August 22, 2011

Inter vivos gifts.

Practice point: The donor must intend to make an irrevocable present transfer of ownership, and there must be delivery and acceptance.

Student note: If the intention is to make a testamentary disposition, the gift is invalid unless made by will.

Case: Ross v. Ross Metals Corp., NY Slip Op 06224 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Venue.

Friday, August 19, 2011

Notice of claim.

Practice point: Service of the notice within 90 of the claim's accrual is a condition precedent to commencing a suit against a school district.

Student note: Plaintiff may not plead a theory of liability that was not included in the notice.

Case: O'Connor v. Huntington School District, NY Slip Op 06222 (2d Dept. 2011).

Here is the decision.

Listen here.

Monday's issue: Inter vivos gifts.

Thursday, August 18, 2011

Third-party conduct.

Practice point: As a general rule, a defendant has no duty to control the conduct of third-parties.

Student note: There is no bright-line rule in New York as to whether a mental health care provider treating a patient on a voluntary basis owes a duty of care to the general public.

Case: Fox v. Marshall, NY Slip Op 06214 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Notice of claim.

Wednesday, August 17, 2011


Practice point: A federal felony conviction will trigger automatic disbarment if there is an equivalent felony under New York law.

Student note: The standard is the essential similarity of the elements of the felonies.

Case: Matter of Starr, NY Slip Op 06193 (1st Dept. 2011).

Tomorrow’s issue: Third-party conduct.

Tuesday, August 16, 2011

Falls on ice.

Practice point: Defendant did not refute plaintiffs' contention that the dangerous condition existed, and, therefore, had to establish that it did not create the condition or have notice of it.

Student note: Defendant failed to meet its burden with respect to notice when it proffered no affidavit or testimony based on personal knowledge as to when its employees last inspected the sidewalk, or the sidewalk's condition before the accident.

Case: Spector v. Cushman & Wakefield, Inc., NY Slip Op 06189 (1st Dept. 2011).

Tomorrow’s issue: Disbarment.

Monday, August 15, 2011


Practice point: When plaintiff misnamed the corporate signatory, who had committed no wrongful conduct, the court will dismiss the action as against this defendant.

Student note: There is nothing inherently unconscionable about a nonreciprocal attorney's fee provision in a commercial contract.

Case: Lansco Corp. v. Kampeas, NY Slip Op 06188 (1st Dept. 2011).

Tomorrow’s issue: Falls on ice.