Friday, April 29, 2011

School injuries.

Practice point: To recover damages for failure to provide adequate supervision, plaintiff must demonstrate that the school was on notice, such that a third-party's acts could reasonably have been anticipated.

Students should note that the impulsive act of a fellow student ordinarily will not give rise to a finding of negligence.

Gomez v. Floral Park-Bellrose Union Free School Dist., NY Slip Op 03028 (2d Dept. 2011).

Monday's issue is summary judgment.

Thursday, April 28, 2011

Workers' compensation.

Practice point: Workers' Compensation Law §§ 11 and 29(6) provide that an employee who elects compensation benefits may not sue the employer in an action at law.

Students should note that these exclusivity provisions apply to special employers, as well as direct employers.

D'Alessandro v. Aviation Constructors, Inc., NY Slip Op 03021 (2d Dept. 2011).

Tomorrow's issue is injuries at school.

Wednesday, April 27, 2011

The emergency doctrine.

Practice point: In a sudden or unexpected circumstance where there is no time for thought, deliberation or consideration, the actor may not be liable for negligence if the actions taken were reasonable and prudent.

Students should note that the reasonableness of an actor's response is ordinarily a question of fact.

Crawford-Dunk v. MV Transp., Inc., NY Slip Op 03019 (2d Dept. 2011).

Tomorrow's issue is workers' compensation.

Tuesday, April 26, 2011

Landowner's duties.

Practice point: The fact that a defect may be open and obvious does not negate the duty to maintain the premises in a reasonably safe condition, but may raise a question as to plaintiff's comparative negligence.

Students should note that whether a dangerous condition exists on real property, making the landowner liable, is generally a fact question for the jury.

Clark v. AMF Bowling Ctrs., Inc., NY Slip Op 03016 (2d Dept. 2011).

Tomorrow's issue is the emergency doctrine.

Monday, April 25, 2011

Labor Law.

Practice point: On a § 240(1) claim, an injured plaintiff does not have to prove that the hoist was defective, only that he was not given proper protection.

Students should note that uncertainty as to exactly what preceded the accident does not create an issue of fact as to proximate cause.

Arnaud v. 140 Edgecomb LLC, NY Slip Op 02951 (1st Dept. 2011).

Tomorrow's issue is landowner's duties.

Friday, April 22, 2011

Vicarious liability for medical malpractice.

Practice point: Apparent or ostensible agency may serve as a predicate for the claim.

Students should note that a supervised practitioner who is not exercising independent judgment will not be liable unless the supervisor's instructions are so deviant from normal practice that there should be liability for failing to intervene.

Bellafiore v. Ricotta, NY Slip Op 02822 (2d Dept. 2011).

Monday's issue is Labor Law.

Thursday, April 21, 2011

Bus stops.

Practice point: A common carrier owes a duty to stop at a place where the passengers may safely disembark and leave the area.

Students should note that the duty terminates once the passenger has safely left the bus.

Barravecchio v. NYC Transit, NY Slip Op 02821 (2d Dept. 2011).

Tomorrow's issue is vicarious liability for medical malpractice.

Wednesday, April 20, 2011

Breach of fiduciary duty.

Practice point: A person knowingly participates in the breach only by providing substantial assistance to the primary violator.

Students should note that a claim of aiding and abetting the breach must allege that the defendant had actual knowledge, not constructive knowledge.

 Baron v. Galasso, NY Slip Op 02820 (2d Dept. 2011).

Tomorrow's issue is bus stops.

Tuesday, April 19, 2011

Preliminary injunctions.

Practice point: The mere existence of an issue of fact will not result in the denial of the motion.

Students should note that the motion requires a showing of likely success on the merits; irreparable harm; and a balance of the equities in movant's favor.

Arcamone-Makinano v. Britton Prop., Inc., NY Slip Op 02818 (2d Dept. 2011).

Tomorrow's issue is breach of fiduciary duty.

Monday, April 18, 2011

Bed bugs.

Practice point: A bug infestation is not a matter uniquely within a seller's knowledge, such that it requires disclosure by the seller. 

Students should note that if the contract specifically disclaims reliance on any representations as to the physical condition of the building, there is no claim arising from the seller's alleged misrepresentations that the building did not have a bedbug problem.

85-87 Pitt St., LLC v. 85-87 Pitt St. Realty Corp., NY Slip Op 02796 (1st Dept. 2011).

Tomorrow's issue is preliminary injunctions.

Friday, April 15, 2011


Practice point: Avoiding liquated damages requires a showing that the amount fixed is plainly or grossly disproportionate to the probable loss.

Students should note that the proper measure of the damages for trespass is the gain the trespasser has derived from its wrongful conduct.

Moskowitz v. Pavarini McGovern LLC, NY Slip Op 02787 (1st Dept. 2011).

Monday's issue is bed bugs.

Thursday, April 14, 2011

Striking an answer.

Practice point: Absent a showing that defendant's failure to comply with discovery obligations was willful or in bad faith, the court cannot strike defendant's answer.

Students should note that, unless there has been a motion to compel discovery, a CPLR 3216 motion to strike is premature.

W&W Glass, LLC v. 1113 York Ave. Realty Co. LLC, NY Slip Op 02786 (1st Dept. 2011).

Tomorrow's issue is damages.

Wednesday, April 13, 2011

Labor Law.

Practice point: § 240(1) imposes a nondelegable duty on owners, even when the job is performed by a contractor the owner did not hire and of which it was unaware, and, therefore, which it did not supervise or control.

Students should note that defendant will not be liable under common-law negligence or § 200 if the accident was not caused by a dangerous condition of which defendant had actual or constructive notice.

Bruce v. 182 Main St. Realty Corp., NY Slip Op 02785 (1st Dept. 2011).

Tomorrow's issue is striking an answer.

Tuesday, April 12, 2011

Improper disposition of cremains.

Practice point: Losing, or improperly dealing with, a decedent's remains gives rise to a cause of action by the next of kin.

Students should note that merely causing doubt as to whether particular ashes are those of a plaintiff's loved one, without more, is not actionable.

The case is Bailey v. Benta's Funeral Home, Inc., NY Slip Op 02537 (1st Dept. 2011).

Tomorrow's issue is Labor Law.

Monday, April 11, 2011

Conversion and fraud.

Practice point: There is conversion when a person intentionally, and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that other person's right of possession.

Students should note that, to sustain a claim for fraud, a plaintiff must plead material misrepresentation of a fact; knowledge of its falsity; an intent to induce reliance; justifiable reliance by the plaintiff; and damages.

The case is Demry v. Wind, NY Slip Op 02535 (1st Dept. 2011).

Tomorrow's issue is improper disposition of cremains.

Friday, April 8, 2011

Appellate practice.

Practice point: If the order did not decide a motion made upon notice, there is no right of appeal, pursuant to CPLR 5701(a)(2).

Students should note that the Appellate Division may deem the notice of appeal a motion for leave to appeal, pursuant to CPLR 5701(c), and grant the motion.

Grgurovic v. Controlled Combustion Co., NY Slip Op 02533 (1st Dept. 2011).

Monday's issue is conversion and fraud.

Thursday, April 7, 2011

Tortious interference with a contract.

Practice point: Plaintiff must allege the existence of a valid contract with a third party; defendant's knowledge of the contract; defendant's intentional procurement of the third party's breach, without justification; and damages.

Students should note that plaintiff must specifically allege that, but for defendant's conduct, there would have been no breach. 

Ferrandino & Son, Inc. v. Wheaton Bldrs., Inc., LLC, NY Slip Op 02346 (2d Dept. 2011).

Tomorrow's issue is appellate practice.

Wednesday, April 6, 2011

Service of process.

Practice point: The affidavit of plaintiff's process server constitutes prima facie evidence of valid service of the summons and complaint, pursuant to CPLR 308(1).

Students should note that defendant's bare and unsubstantiated denial of service is insufficient to rebut the presumption of proper service.

Citimortgage, Inc. v. Phillips, NY Slip Op 02343 (2d Dept. 2011).

Tomorrow's issue is tortious interference with a contract.

Tuesday, April 5, 2011

Setting aside a verdict.

Practice point: Pursuant to CPLR 4404(a), the motion may allege errors in the trial court's evidentiary rulings, mistakes in the charge, misconduct, newly discovered evidence, and surprise.

Students should note that the court must consider whether substantial justice has been done, and then rely on common sense, experience, and fairness.

The case is Allen v. Uh, NY Slip Op 02338 (2d Dept. 2011).

Tomorrow's issue is service of process.

Monday, April 4, 2011

Labor Law.

Practice point: A plaintiff is not entitled to the protection of § 241(6) unless the injury happens during construction, excavation or demolition.

Students should note that if the injury happens in the course of remedying a condition plaintiff was charged to amelirorate, there are no § 200 or common-law negligence causes of action..

The case is Montalvo v. New York & Presbyt. Hosp., NY Slip Op 02060 (1st Dept. 2011).

Tomorrow's issue is setting aside a verdict.

Friday, April 1, 2011

Attorney-client relationships.

Practice point: When, by letter, the attorneys unequivocally inform the client that they will not proceed with client's case, the relationship is severed.

Students should note that, at this point, the continuous representation doctrine no longer applies, and the toll of the statute of limitations for a malpractice claim is lifted.

The case is Riley v. Segan, Nemerov & Singer, P.C., NY Slip Op 02048 (1st Dept. 2011).

Here is the decision.

Monday's issue is Labor Law.