Friday, July 29, 2011

Prima facie tort.

Practice point: The elements are: (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful.

Student note: The claim does not lie where defendant's action has any motive other than a desire to injure the plaintiff.

Case: Smith v. Meridian Tech, Inc., NY Slip Op 05954 (2d Dept. 2011).

Monday's issue: Architect malpractice.

Thursday, July 28, 2011

Adverse possession

Practice point: Claimant must prove that possession of the property was: (1) hostile and under a claim of right; (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period.

Student note: Pursuant to RPAPL 501(3), "[a] claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be."

Case: Hogan v. Kelly, NY Slip Op 06018 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Prima facie tort.

Wednesday, July 27, 2011

Motions to dismiss.

Practice point: Pursuant to CPLR 3211(a)(1), the motion may be granted only where the movant offers documentary evidence which utterly refutes plaintiff's allegations, and conclusively establishes a defense as a matter of law.

Student note: In considering the motion, pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged as true, give plaintiff the benefit of every possible inference, and determine only whether the alleged facts fit within any cognizable legal theory.

Case: Cog-Net Bldg. Corp. v. Travelers Indem. Co., NY Slip Op 06014 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Adverse possession.

Tuesday, July 26, 2011

Labor Law.

Practice point: There is no § 240(1) liability when safety devices were readily available at the work site and plaintiff knew he was expected to use them but, without good reason, did not.

Student note: There may be § 240(2) liability when a worker is injured due to an elevation-related hazard.

Case: Pietrowski v. Are-East Riv. Science Park, LLC, NY Slip Op 05977 (1st Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Motions to dismiss.

Monday, July 25, 2011


Practice point: If defendant was fraudulently induced, it is entitled to rescind the contract.

Student note: The effect of rescission is to declare the contract void from its inception, and to put or restore the parties to status quo 

Case: Cusack v. American Defense Sys., Inc., NY Slip Op 06015 (2d Dept. 2011).

Tomorrow's issue: Labor Law.

Friday, July 22, 2011


Practice point: Generally, a corporation that acquires the assets of another is not liable for the torts of its predecessor. 

Student note: However, the successor corporation may be liable if it is nothing more than a continuation of its predecessor.

Case: Kaur v. American Tr. Ins. Co., NY Slip Op 05938 (1st Dept. 2011).

Monday's issue: Rescission.

Thursday, July 21, 2011

Civil contempt.

Practice point: A  party seeking an adjudication of civil contempt must establish a willful and deliberate violation of a court order, expressing a clear and unequivocal mandate, pursuant to Judiciary Law § 753.

Student note: The burden of proof is on the party seeking the adjudication, and the standard is clear and convincing.

Case: Collins v. Telcoa Intl. Corp., NY Slip Op 05948 (2d Dept. 2011).

Tomorrow’s issue: Corporations.

Wednesday, July 20, 2011

Yellowstone injunctions.

Practice point: The injunction maintains the status quo so that a commercial tenant, when threatened with termination, may stay tolling the cure period, and, upon an adverse determination on the merits, may cure the default.

Student note: Tenant must demonstrate that (1) it holds a commercial lease; (2) it received a notice of default, a notice to cure, or a threat of termination; (3) it requested injunctive relief prior to both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord's notice to cure; and (4) it is prepared, and maintains the ability, to cure the alleged default by any means short of vacating the premises 

Case: Barsyl Supermarkets, Inc. v Avenue P Assoc., LLC, NY Slip Op 05946 (2d Dept. 2011).

Tomorrow’s issue: Civil contempt.

Tuesday, July 19, 2011

Tolling the statute.

Practice point: CPLR 204(a) tolls the one-year and 90-day statute of limitations on tort claims against municipal defendants while a motion to serve a late notice of claim is pending. 

Student note: Since plaintiffs were effectively prohibited from properly commencing their action when their initial application for leave to serve the late notice was pending, as well as when their second application for similar relief was pending, they were entitled to a toll for both periods.

Case: Ambrus v. City of New York, NY Slip Op 05945 (2d Dept. 2011).

Tomorrow's issue: Yellowstone injunctions.

Monday, July 18, 2011

Downhill snowboarding.

Practice point: Plaintiff's injury, caused by hitting a stump, while swerving to avoid another person on the trail, is one of the risks inherent in downhill snowboarding.

Student note: By engaging in the recreational sport of snowboarding, plaintiff consented to those risks which are inherent in and arise out of the nature of the sport, and which flow from plaintiff's participation.

Case: Bedder v Windham Mtn. Partners, LLC, NY Slip Op 05861 (1st Dept. 2011).

Tomorrow's issue: Tolling the statute.

Friday, July 15, 2011

Orders granted on default.

Practice point: No appeal lies from the order, pursuant to CPLR 5511.

Student note: Defendant's remedy is a motion to vacate, pursuant to CPLR 5015[a][1].

Case: Baez-Ferreira v. Marte, NY Slip Op 05869 (1st Dept. 2011).

Monday's issue: Downhill snowboarding.

Thursday, July 14, 2011

Liability on a contract.

Practice point: Officers and agents of a company are not personally liable unless they purport to bind themselves individually.

Student note: While privity is not required for an unjust enrichment claim, there must be a connection between the parties that could have caused plaintiff's reliance or inducement.

Case: Georgia Malone & Co., Inc. v. Rieder, NY Slip 05856 (1st Dept. 2011).

Tomorrow's issue: Orders granted on default.

Wednesday, July 13, 2011

Substitute teachers and tenure.

Practice point: A substitute teacher may not accumulate tenure credit while teaching pursuant to an intern certificate.

Student note:  Prior to receiving tenure, eligible educators must serve a probationary period of up to three years, pursuant to  Education Law § 3014[1].

Case: Matter of Berrios v. Board of Educ. of Yonkers City School Dist., NY Slip Op 05804 (2d Dept. 2011).

Tomorrow's issue: Liability on a contract.

Tuesday, July 12, 2011


Practice point: The affidavit may be offered to remedy a pleading defect, but it is not necessary as evidentiary support for a properly pleaded claim.

Student note: Dismissal is warranted only if either party's affidavit establishes that plaintiff has no cause of action.

Case: Bodden v. Kean, NY Slip Op 05794 (2d Dept. 2011).

Tomorrow's issue: Substitute teachers and tenure.

Monday, July 11, 2011

A school's duty of care.

Practice point: The duty is to exercise the same degree of care toward its students as would a reasonably prudent parent.

Student note: The school is not an insurer of its students' safety, and it will be held liable only for foreseeable injuries proximately related to alleged inadequate supervision.

Case: Rodriguez v. Riverhead Cent. School District, NY Slip Op 05686 (2d Dept. 2011).

Tomorrow's issue: Affidavits.

Friday, July 8, 2011

Separation agreements.

Practice point: Agreements which are fair on their face will be enforced according to their terms unless there is proof of fraud, duress, overreaching, or unconscionability.

Student note: Because of the fiduciary relationship between spouses, courts will scrutinize separation agreements more carefully than they will ordinary contracts.

Kabir v. Kabir, NY Slip Op 05672 (2d Dept. 2011).

Monday's issue: A school's duty of care.

Thursday, July 7, 2011

Attorney malpractice.

Practice point: Ordinarily, privity of contract is necessary to state the cause of action..
Student note: There is a narrow exception where there is fraud, collusion, or malicious acts. 

Ginsburg Dev. Cos., LLC v Carbone, NY Slip Op 05664 (2d Dept. 2011).

Tomorrow's issue is separation agreements.

Wednesday, July 6, 2011

Examinations before trial.

Practice point: No appeal as of right lies from an order determining an application to review rulings made at an examination before trial.
Student note: Similarly, the denial of a protective order preventing the further examination of a witness is not appealable as of right, since that is in the nature of an order on application to review objections raised at an examination before trial.
Braverman v. Bendiner & Schlesinger, Inc., NY Slip Op 05645 (2d Dept. 2011).
Tomorrow's issue is attorney malpractice.

Tuesday, July 5, 2011

Notice of claim.

Practice point:  The notice is not a condition precedent to a cause of action, asserted pursuant to 42 USC § 1983, which seeks to recover damages premised on violations of federal civil or constitutional rights under color of state law.

Students should note that timely service of the notice is a condition precedent to a lawsuit sounding in tort and commenced against a municipality.
Rowe v. NYCPD, NY Slip Op 05477 (2d Dept. 2011).
Tomorrow's issue is examinations before trial.

Monday, July 4, 2011

Happy July Fourth.

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

If you are a Veteran, thank you for your service in the name of our freedom, and if you have a family member in service, thank you for your sacrifice.

Tomorrow's issue is notice of claim.

Friday, July 1, 2011

Vehicle and Traffic Law.

Practice point: Pursuant to § 388(1), the motor vehicle's owner is liable for the negligence of anyone who operates the vehicle with the owner's express or implied consent.

Students should note that there is a rebuttable presumption that the operator was driving the vehicle with the owner's consent.

Panteleon v. Amaya, NY Slip Op 05471 (2d Dept. 2011).

Tuesday's issue is notice of claim.