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.