Tuesday, May 31, 2011

Extreme weather.

Practice point:  Summary judgment is proper where defendant demonstrates, through climatological data and expert opinion, that the conditions would preclude the existence of snow or ice at the time of the accident.

Students should note that, pursuant to CPLR 4528, a record of weather observations taken under the direction of the United States Weather Bureau is prima facie evidence of the facts stated.

Massey v. Newburgh W. Realty, Inc., NY Slip Op 04086 (1st Dept. 2011).

Tomorrow's issue is sidewalk defects.

Monday, May 30, 2011

Happy Memorial Day.

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

To our Veterans, thank you for your service. If you have a family member in service right now, thank you for your sacrifice.

A safe and happy holiday to all of you.

Tomorrow's issue is extreme weather.

Friday, May 27, 2011

Labor Law.

Practice point: To establish a § 240(1) claim, plaintiff must demonstrate that defendant violated the statute, and that this violation was the proximate cause of his injuries.

Students should note that if plaintiff's actions are the sole proximate cause of his injuries, liability does not attach.

Tomlins v. DiLuna, NY Slip Op 04234 (2d Dept. 2011).

Tuesday's issue is extreme weather.

Thursday, May 26, 2011

Medical malpractice.

Practice point: Plaintiff must prove that defendant deviated from accepted community standards of practice, and that this was the proximate cause of the injury.

Students should note that conclusory and unsupported allegations tending to establish the elements will not defeat defendant's summary judgment motion.

Salvia v. St. Catherine of Sienna Med. Ctr., NY Slip Op 04227 (2d Dept. 2011).

Tomorrow's issue is Labor Law.

Wednesday, May 25, 2011

Summary judgment.

Practice point: To establish that the motion is premature, defendant must offer an evidentiary basis to show that discovery may lead to relevant evidence, and that the facts essential to opposing the motion are exclusively within plaintiff's knowledge and control.

Students should note that mere hope or speculation that such evidence will be uncovered by further discovery is an insufficient basis.

Martinez v. Kreychmar, NY Slip Op 04214 (2d Dept. 2011).

Tomorrow's issue is medical malpractice.

Tuesday, May 24, 2011

Background checks.

Practice point: The employer has no duty to inquire as to whether an employee has been convicted of crimes in the past.

Students should note that the employer will not be liable on a respondeat superior theory if the employee's behavior was outside the scope of employment.

McCann v. Varrick Group LLC, NY Slip Op 04104 (1st Dept. 2011).

Tomorrow's issue is summary judgment.

Monday, May 23, 2011

Personal jurisdiction.

Practice point: Defendant does not waive any defenses based on lack of personal jurisdiction by removing the action to federal court.

Students should note that the determination of whether a tortious act committed outside New York causes injury inside the state depends on the location of the original event which caused the injury.

Magwitch, L.L.C. v. Pusser's, Inc., NY Slip Op 03973 (1st Dept. 2011).

Tomorrow's issue is background checks.

Friday, May 20, 2011

Employment law.

Practice point: An employee may solicit an employer's customers only when the employment relationship has terminated.

Students should note that the employee may create a competing business prior to termination unless, in doing so, the employee improperly uses the employer's time, resources or trade secrets.

Island Sports Physical Therapy v. Burns, NY Slip Op 04002 (2d Dept. 2011).

Monday's issue is personal jurisdiction.

Thursday, May 19, 2011


Practice point: Only statements alleging facts are properly the subject of the action.

Students should note that falsity is a necessary element of the cause of action.

Galanos v. Cifone, NY Slip Op 03996 (2d Dept. 2011).

Tomorrow's issue is employment law.

Wednesday, May 18, 2011

The best evidence rule.

Practice point: Plaintiff did not dispute the existence of defendant's affidavit, or the accuracy of the reproduction, and so the rule should not have been invoked to bar consideration of the reproduction.

Students should note that the rule requires the production of the original writing if its contents are in dispute and sought to be proven.

Billingy v. Blagrove, NY Slip Op 03986 (2d Dept. 2011).

Tomorrow's issue is defamation.

Tuesday, May 17, 2011


Practice point: A property owner may be liable for injuries resulting from malfunctions or defects of which it has notice.

Students should note that a company which contracts to do repairs may be liable for not correcting a defect of which it is aware, or for not finding a defect that it reasonably should have found.

Isaac v. 1515 Macombs, LLC, NY Slip Op 03717 (1st Dept. 2011).

Tomorrow’s issue is the best evidence rule.

Monday, May 16, 2011

Failure to answer.

Practice point: To avoid the default, or to extend the time to answer, defendant must provide a reasonable excuse and a potentially meritorious defense.

Students should note that the court may accept law office failure as an excuse.

Wells Fargo Bank v. Cervini, NY Slip Op 03837 (2d Dept. 2011).

Tomorrow's issue is elevators.

Friday, May 13, 2011


Practice point: Witness statements taken by a party's counsel are subject to the qualified privilege for materials prepared in anticipation of litigation or for trial, pursuant to CPLR 3101[d][2].

Students should note that, to overcome the privilege, there must be a showing of a substantial need for the materials, and the inability to get them elsewhere.

Valencia v.Obayashi Corp., NY Slip Op 03835 (2d Dept. 2011).

Monday's issue is failure to answer.

Thursday, May 12, 2011

Primary assumption of risk.

Practice point: The doctrine includes risk associated with the construction of the playing surface, and any open and obvious condition on that surface.

Students should note that, for the doctrine to be applied, plaintiff need not have foreseen the exact way in which the injury occurred, as long as plaintiff was aware of the potential for injury of the mechanism from which the injury resulted.

Krebs v. Town of Wallkill, NY Slip Op 03808 (2d Dept. 2011).

Tomorrow's issue is privilege.

Wednesday, May 11, 2011

Summary judgment.

Practice point: The court may consider an untimely motion or cross motion if a timely motion was made on identical or nearly identical grounds.

Students should note that, in deciding the timely motion, the court may search the record and award summary judgment to the non-movant, pursuant to CPLR3212(b).

Homeland Ins. Co. of N.Y. v. National Grange Mut. Ins. Co., NY Slip 03805 (2d Dept. 2011).

Tomorrow’s issue is primary assumption of risk.

Tuesday, May 10, 2011


Practice point:  A corporate entity has the right to designate the representatives to be examined.

Students should note that, in order to depose others, movant must demonstrate that those already deposed had insufficient knowledge, or were otherwise inadequate, and that there is a substantial likelihood that the persons sought for examination have information that is material and necessary to the prosecution or defense of the action.

Giordano v. New Rochelle Housing Authority, NY Slip Op 03802 (2d Dept. 2011).

Tomorrow’s issue is summary judgment.

Monday, May 9, 2011


Practice point: The action must be commenced within six years of the fraud, or within two years from the time the plaintiff discovered it, or, with reasonable diligence, could have.

Students should note that plaintiff will be held to have discovered the fraud when it is established that he was possessed of facts from which the fraud could reasonably be inferred.

Gorelik v. Vorhand, NY Slip Op 03207 (2d Dept. 2011).

Tomorrow's issue is depositions.

Friday, May 6, 2011

Labor Law § 240(1).

Practice point: Where the worker is engaged in routine maintenance, the statute does not apply.

Students should note that the fact that the injured plaintiff was the only witness to the accident does not preclude summary judgment in his favor.

Fox v. H&M Hennes & Mauritz, L.P., NY Slip Op 03205 (2d Dept. 2011).

Monday's issue is fraud.

Thursday, May 5, 2011

Notice of claim.

Practice point: Service of the notice within 90 days after accrual of the claim is a condition precedent for commencing a tort action against the defendant town, pursuant to General Municipal Law §§ 50-e[1][a], 50-i[1].

Students should note that a late notice, served without leave of the court, is a nullity.

Carafora v. Town of Newburgh, NY Slip Op 03197 (2d Dept. 2011).

Tomorrow's issue is Labor Law § 240(1).

Wednesday, May 4, 2011

Real estate contracts.

Practice point: Once the contractual time-of-the-essence closing date was waived, plaintiffs were within their rights to unilaterally set a date.

Students should note that defendants' assertion that the date was "not good" for them is insufficient to raise a fact issue as to the date's reasonability.

Chaves v. Kornfeld, NY Slip Op 03102 (1st Dept. 2011).

Tomorrow's issue is notice of claim.

Tuesday, May 3, 2011

Tort liability.

Practice point: Liability for a dangerous condition is generally predicated on ownership, control or a special use of the property.

Students should note that, for liability, control of the work is a critical factor in determining whether a party is an independent contractor or an employee.

Lopez v. Allied Amusement Shows, Inc., NY Slip Op 03097 (1st Dept. 2011).

Tomorrow's issue is real estate contracts.

Monday, May 2, 2011

Summary judgment.

Practice point:  The opponent is entitled to further discovery when it appears that facts supporting the opposition may exist but cannot yet be stated.

Students should note that this is especially so when there was not a reasonable opportunity for disclosure prior to the making of the motion.

Nicholson v. Bader, NY Slip Op 03041 (2d Dept. 2011).

Tomorrow's issue is tort liability.