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.

Friday, August 12, 2011


Practice point: Prior arbitration awards may be given effect in a subsequent judicial action, pursuant to CPLR 3211[a][5].

Student note:  Because mutuality of parties is not required, a defendant may preclude a plaintiff from relitigating an issue resolved against that plaintiff in an earlier arbitration with a different defendant.

Case: Bernard v. Proskauer Rose, LLP, NY Slip Op 06184 (1st Dept. 2011).

Monday's issue: Contracts.

Thursday, August 11, 2011

Attorney discipline.

Practice point: Pursuant to 22 NYCRR 603.3(a), a New York attorney is subject to discipline here for conduct resulting in discipline in another jurisdiction.

Student note: If the other jurisdiction's sanction is consistent with the sanction for similar misconduct here, New York will impose it.

Case:  Matter of Sirkin, NY Slip Op 06192 (1st Dept. 2011).

Tomorrow's issue: Arbitrations.

Wednesday, August 10, 2011

Setting aside a jury verdict.

Practice point: Pursuant to CPLR 4404(a),were the verdict is contrary to the weight of the evidence, a court may set aside a jury verdict and either (1) direct that judgment be entered in favor of a party, or (2) order a new trial.

Student note: The standard is whether the evidence so preponderates in favor of the movant that the jury could not have reached the verdict by any fair interpretation of the evidence.

Case: Kim v. New York City Transit, NY Slip Op 06123 (2d Dept. 2011).

Tomorrow's issue: Attorney discipline.

Tuesday, August 9, 2011

Labor Law.

Practice point: Performing construction work for purposes of § 240(1) and working at a construction site for purposes of § 241(6) are distinguished from fabricating and transporting materials to be used in ongoing work at the construction site. 

Student note: Dispositive for dismissal was the fact that, at the time of his injury, plaintiff was engaged in the fabrication and loading of steel at his employer's Bronx facility, not in performing construction work at the construction site in Queens.

Case: Flores v. ERC Holding LLC, NY Slip Op 06187 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue: Setting aside a jury verdict.

Monday, August 8, 2011

Administrative hearings.

Practice point: The standard of judicial review is whether the determination was supported by substantial evidence.

Student note: Where the evidence is conflicting and there is room for choice, a reviewing court may not weigh the evidence or reject the agency's choice.

Case: Matter of Martin v. Board of Trustees of the Vil. of Pelham Manor, NY Slip OP 06106 (2d Dept. 2011).

Tomorrow's issue: Labor Law.

Friday, August 5, 2011

Informed consent.

Practice point: Plaintiff must prove that no reasonable person, if fully informed, would consent to the treatment, and that the treatment proximately caused the injury.

Student note: Pursuant to CPLR 4401-a, a prima facie claim requires expert testimony establishing that the disclosed information about the procedure's inherent risks was qualitatively insufficient. 

Case: Evart v. Park Ave. Chiropractics, P.C., NY Slip Op 05878 (1st Dept. 2011).

Monday's issue: Administrative hearings.

Thursday, August 4, 2011

Personal injury.

Practice point: Defendant is entitled to summary judgment as a matter of law when plaintiff cannot identify the defect that caused the injury.

Student note: It was not enough when, at his deposition, decedent-plaintiff' had circled the defect in the photograph based on his recognition of the approximate location where he fell — not his recognition of the defect itself.

Case: Siegel v. City of New York, NY Slip Op 05937 (1st Dept. 2011).

Tomorrow's issue: Informed consent.

Wednesday, August 3, 2011

Medical malpractice.

Practice point: If the matter is not within the ordinary juror's experience, expert testimony is needed to prove a deviation from the accepted standard of medical care and proximate cause.

Student note: When that expert testimony is precluded, plaintiff cannot make out a prima facie case, and the complaint will be dismissed.

Case: Sushchenko v. Dyker Emergency Physicians Serv., P.C., NY Slip Op 06101 (2d Dept. 2011).

Tomorrow's issue: Personal injury.

Tuesday, August 2, 2011

90-day demands.

Practice point: On receipt of a 90-day demand, pursuant to CPLR 3216, plaintiff must serve and file a timely note of issue, or move, before the default date, to vacate the demand or to extend the time, pursuant to CPLR 2004.

Student note: Otherwise, plaintiff must demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action to avoid dismissal, pursuant to CPLR 3216[e].

Case Gagnon v. Campbell, NY Slip Op 06092 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Medical malpractice.

Monday, August 1, 2011

Architect malpractice.

Practice point: There is a three-year statute of limitations, pursuant to CPLR 214(6).

Student note: The cause of action accrues on completion of the work and the subsequent termination of the professional relationship.

Case: Vlahakis v. Belcom Dev., LLC, NY Slip Op 05957 (2d Dept. 2011).

Tomorrow's issue: 90-day demands.