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.