Wednesday, November 30, 2011

Title to a motor vehicle.

Practice point: Title is transferred when the parties intend the transfer to occur.

Student note: Therefore, title may pass to a purchaser on delivery of the vehicle, notwithstanding that formal registration of the vehicle in the purchaser's name occurs later.

Case: Godfrey v. G.E. Capital Auto Lease, Inc., NY Slip Op 07903 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: A binding signature.

Tuesday, November 29, 2011

Vacating a default.

Practice point: To vacate a default in opposing defendant’s summary judgment motion, plaintiff is required to demonstrate a reasonable excuse for not opposing the motion and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1].

Student note: Plaintiff’s excuse of law office failure will be rejected if the record shows that the alleged mistake was not isolated, but rather part of a pattern of willful delay and default.

Case: Thapt v. Luthern Med. Ctr., NY Slip Op 08141 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Title to a motor vehicle.

Monday, November 28, 2011

The relation-back doctrine.

Practice point: The doctrine, which is codified in CPLR 203(b), allows a claim asserted against a defendant in an amended complaint to relate back to claims previously asserted against a codefendant for statute of limitations purposes if the two defendants are united in interest.

Student note:  The plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new defendant knew or should have known that, but for  plaintiff's mistake as to the identity of the proper parties, the action would have been brought against him or her as well.

Case: Stevens v. Winthrop S. Nassau Univ. Health Sys., Inc., NY Slip Op 08140 (2d Dept. 2011).

Tomorrow’s issue: Vacating a default.

Friday, November 25, 2011

Pre-employment checks.

Practice point: To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, plaintiff must show that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.

Student note:  There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.

Case: Shor v. Touch-N-Go Farms, Inc., NY Slip Op 08138 (2d Dept. 2011).

Monday’s issue:  The relation-back doctrine.

Thursday, November 24, 2011

Happy Thanksgiving.

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

Tomorrow’s issue is pre-employment checks.

Wednesday, November 23, 2011

A property owner's duty to protect.

Practice point: Although a property owner must act in a reasonable manner to prevent harm to those on its premises, the duty to control the conduct of persons on its premises arises only when the owner can control such conduct, and is reasonably aware of the need for that control.

Student note:  The owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.

Case: Kiely v. Benini, NY Slip Op 08126 (2d Dept. 2011).

Here is the decision.

Friday’s issue: Pre-employment checks.

Tuesday, November 22, 2011

Legal malpractice.

Practice point: To recover damages, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.

Student note: To establish causation, a plaintiff is required to show that he would not have incurred any damages, but for the lawyer's negligence, and that he incurred actual damages as a direct result of the attorney's actions or inaction.

Case: Humbert v. Allen, NY Slip Op 08125 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: A property owner’s duty to protect.

Monday, November 21, 2011

Respondeat superior.

Practice point: Pursuant to the doctrine, an employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment.

Student note:  However, liability doe not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business.

Case: Horvath v. L & B Gardens, Inc., NY Slip Op 08124 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Legal malpractice.

Friday, November 18, 2011

Proper service.

Practice point: Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service.

Student note: However, where there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted, and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence.

Case: Goralski v. Nadzan, NY Slip Op 08122 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Respondeat superior.

Thursday, November 17, 2011


Practice point: A cause of action based upon Labor Law § 740, known as the whistleblower statute, is available to an employee who discloses or threatens to disclose an employer's activity or practice which (1) is in violation of a law, rule or regulation, and (2) creates a substantial and specific danger to the public health.

Student note: Since plaintiff asserted a § 740 cause of action, she waived the cause of action alleging wrongful termination, inasmuch as it arose out of the same underlying claim of retaliatory action.

Case: Freese v. Willa, NY Slip Op 08118 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Proper service.

Wednesday, November 16, 2011

Caveat emptor.

Practice point: New York adheres to the doctrine and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm's length, unless there is some conduct which constitutes active concealment.

Student note: A plaintiff seeking to recover damages for active concealment must show that the defendant thwarted the plaintiff's efforts to fulfill the responsibilities imposed by the doctrine.

Case: Margolin v. I M Kapco, Inc., NY Slip Op 07815 (2d Dept. 2011)

Here is the decision.

Tomorrow’s issue: Whistleblowers.

Tuesday, November 15, 2011

Unlicensed contractors.

Practice point: An unlicensed contractor may neither enforce a home improvement contract against an owner nor seek recovery in quantum meruit.

Student note: Pursuant to CPLR 3015(e), an action to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services will be dismissed if the complaint does not allege compliance with the licensing requirement.

Case: Enko Constr. Corp. v. Aronshtein, NY Slip Op 07805 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Caveat emptor.

Monday, November 14, 2011

Preliminary injunctions.

Practice point: Where the movant does not demonstrate a likelihood of success on the merits, irreparable damage, and a balance of the equities in movant's favor, the motion will not be granted.

Student note: The motion will not be denied just because there are issues of fact, unless they subvert the plaintiff's likelihood of success on the merits to such a degree that it cannot be said that the plaintiff has established a clear right to relief.

Case: Cooper v. Board of White Sands Condominium, NY Slip Op 07799 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Unlicensed contractors.

Friday, November 11, 2011

Veterans Day.

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

To all Veterans, thank you for your service, and to everyone with a family member in service, thank you for your sacrifice.

Monday's issue is preliminary injunctions.

Thursday, November 10, 2011

Judgment as a matter of law.

Practice point: A motion for judgment as a matter of law must be made at the close of the opposing party's case or at any time on the basis of admissions, pursuant to CPLR 4401.

Student note: The grant of such a motion prior to the close of the opposing party's case generally will be reversed as premature, even if the opposing party's ultimate success is improbable.

Case: Burbige v. Siben & Ferber, NY Slip Op 07794 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Preliminary injunctions.

Wednesday, November 9, 2011

Time is of the essence.

Practice point: When the contract states that time is of the essence, the parties are obligated to comply strictly with its terms.

Student note:When time is of the essence, performance on the specified date is a material element of the contract, and failure to perform on that date constitutes a material breach.

Case: Bank of America v. Petit, NY Slip Op 07787 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Judgment as a matter of law.

Tuesday, November 8, 2011

Election Day.

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

Tomorrow's issue is time is of the essence.

Monday, November 7, 2011


Practice point: The holder of a note and mortgage may proceed at law to recover on the note or proceed in equity to foreclose on the mortgage, but must elect only one of these remedies, pursuant to RPAPL 1301.

Student note: RPAPL 1301(1) codifies the equitable principle that once a remedy at law has been resorted to, it must be exercised to exhaustion before a remedy in equity, such as foreclosure, may be sought.

Case: Aurora Loan Servs., LLC v. Lopa, NY Slip Op 07595 (2d Dept. 2011).

Here is the decision.

Wednesday’s issue: Time is of the essence.

Friday, November 4, 2011

Slips and falls.

Practice point: A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of demonstrating, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Student note: Once a defendant has actual or constructive notice of a dangerous condition, the defendant has a reasonable time to undertake remedial actions that are reasonable and appropriate under all of the circumstances.

Case: Alami v. 215 E.68th St., L.P., NY Slip Op 07591 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Foreclosures.

Thursday, November 3, 2011

Labor Law.

Practice point: A property owner is not liable on a § 200 claim if someone is hurt through a dangerous condition which he has undertaken to fix.

Student note: A res ipsa loquitur claim does not lie absent a showing that that the accident could not have been caused by plaintiff’s voluntary action or contribution.

Case: Henriquez v. New 520 GSH LLC, NY Slip Op 07578 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Slips and falls.

Wednesday, November 2, 2011


Practice point: If relevant, plaintiff’s Facebook postings are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access.

Student note:Relevant matter from a personal diary is discoverable.

Case: Patterson v. Turner Constr. Co., NY Slip Op 07572 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Labor Law.

Tuesday, November 1, 2011

Summary judgment.

Practice point: An argument advanced for the first time in reply papers will not be considered in deciding the motion.

Student note: New facts are required on a motion to renew, pursuant to CPLR 2221[e][2]).

Case: Rhodes v. City of New York, NY Slip Op 07569 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Discovery.