Tuesday, January 31, 2012

Power of attorney.

Practice point: If a signature on a power of attorney is forged, any document executed by the purported attorney-in-fact pursuant to the power of attorney is void.

Student note:If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing.

Case: ABN AMRO Mtge. Group, Inc. v. Stephens, NY Slip Op 00477 (2d Dept. 2012).

Tomorrow’s issue: Assumption of the risk.

Monday, January 30, 2012

Labor Law.

Practice point: When the claim is based on alleged defects or dangers in the methods or materials used to perform the work, a plaintiff may recover against an owner or general contractor under § 200 only on a showing that the defendant had the authority to supervise or control the performance of the work.

Student note: General supervisory authority for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability.

Case: Cabrera v. Revere Condominium, NY Slip Op 00320 (2d Dept. 2012).

Tomorrow’s issue: Power of attorney.

Friday, January 27, 2012

Contractual indemnification.

Practice point: A party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances.

Student note: The party must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.

Case: Baillargeon v. Kings County Waterproofing Corp., NY Slip Op 00315 (2d Dept. 2012).

Monday’s issue: Labor Law.

Thursday, January 26, 2012

Falls on City property.

Practice point: Section 7-201(c) of the Administrative Code of the City of New York bars an action if there was no prior written written notice of the alleged defective condition.

Student note: The City's intake records concerning uneven boards on the boardwalk and work orders noting that there were loose or broken boards in need of repair did not raise a triable issue of fact as to whether the City was aware of the alleged defective condition which caused plaintiff to fall.

Case: Arcasascio v. City of New York, NY Slip Op 00313 (2d Dept. 2012).

Tomorrow’s issue: Contractual indemnification.

Wednesday, January 25, 2012

Duty to protect against assaults.

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

Student note: While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control.

Case: Afanador v. Coney Bath, LLC, NY Slip Op 00312 (2d Dept. 2012).

Tomorrow’s issue: Falls on City property.

Tuesday, January 24, 2012

Res ipsa loquitur.

Practice point: The charge is warranted only where a plaintiff establishes that (1) the type of accident at issue ordinarily does not occur in the absence of negligence; (2) the instrumentality causing the accident was in the defendant's exclusive control; and (3) the accident was not due to any voluntary action or contribution by the plaintiff.

Student note: A fall on a moving bus is not an event that ordinarily does not occur in the absence of negligence.

Case: Abrams v. Excellent Bus Serv., Inc., NY Slip Op 00311 (2d Dept. 2012).

Tomorrow’s issue: Duty to protect against assaults.

Monday, January 23, 2012

Punitive damages.

Practice point: New York does not recognize an independent cause of action for punitive damages.

Student note: Questions of law which appear on the face of the record and which could not have been avoided if raised at the proper juncture may be raised for the first time on appeal.

Case: Muniz v. Mount Sinai Hosp. of Queens, NY Slip Op 00192 (2d Dept. 2012).

Tomorrow’s issue:  Res ipsa loquitur.

Friday, January 20, 2012


Practice point: A plaintiff-driver is entitled to judgment as a matter of law on the issue of liability if he or she demonstrates that the sole proximate cause of an accident was the defendant driver's violation of VTL § 1141 in turning left directly into the path of the plaintiff's oncoming vehicle which was lawfully present in the intersection.

Student note: A driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection.

Case: Gause v. Martinez, NY Slip Op 00178 (2d Dept. 2012).

Monday’s issue:  Punitive damages.

Thursday, January 19, 2012

The Noseworthy doctrine.

Practice point: Having presented medical evidence establishing the loss of memory and its causal relationship to defendant's fault, a plaintiff is entitled to the lesser standard of proof applicable to a party unable to present his version of the facts, pursuant to  Noseworthy v. City of New York, 298 NY 76 [1948].

Student note: In order to avail himself of the doctrine, the plaintiff must present prima facie evidence of defendant’s negligence.

Case: Bah v. Benton, NY Slip Op 00106 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue:  Right-of-way.

Wednesday, January 18, 2012

Employment law.

Practice point: The New York State Human Rights Law does not immunize disabled employees from discipline or discharge for misconduct in the workplace.

Student note: EEOC Guideline No. 30 specifically provides that an employer may discipline an individual with a disability for violating a workplace conduct standard which is job-related and consistent with business necessity.

Case: Hazen v. Hill Betts & Nash LLP, NY Slip Op 00047 (1st Dept. 2012).

Tomorrow’s issue: The Noseworthy doctrine.

Tuesday, January 17, 2012

Labor Law.

Practice point: Defendant is not subject to statutory liability if plaintiff simply lost his footing while climbing a properly secured, non-defective extension ladder that did not malfunction.

Student note: Deposition testimony concerning defendant’s policy of using stair towers instead of ladders does not constitute an admission that the ladder was an inappropriate safety device for the work.

Case: Ellerbe v. Port Auth. of N.Y. & N.J., NY Slip Op 00032 (1st Dept. 2012).

Tomorrow’s issue: Employment Law.

Monday, January 16, 2012

Court holiday.

The courts are closed today, and so there is no case posted on NEW YORK LAW NOTES.

Tomorrow’s issue: Labor Law.

Friday, January 13, 2012


Practice point: The plaintiff, in opposing a motion to dismiss pursuant to CPLR 3211(a)(8), must make a prima facie showing that the defendant was subject to the court’s personal jurisdiction.

Student note: When opposing on the ground that discovery is necessary, plaintiff need not make a prima facie showing, but must only demonstrate that facts may exist for the court to exercise personal jurisdiction over the defendant.

Case: Daniel B. Katz & Assoc. Corp. v. Midland Rushmore, LLC, NY Slip Op 09584 (2d Dept. 2011).

Tuesday’s issue:  Labor Law.

Thursday, January 12, 2012

Equitable estoppel.

Practice point: The extraordinary remedy of equitable estoppel may be invoked to bar the affirmative defense of the statute of limitations only where the defendant's affirmative wrongdoing contributed to the delay between accrual of the cause of action and commencement of the legal proceeding.

Student note: The plaintiff must demonstrate reasonable reliance on the defendant's misrepresentations, and the plaintiff's due diligence in ascertaining the facts.

Case: Clark v. Ravikumar, NY Slip Op 09580 (2d Dept. 2011).

Tomorrow’s issue:  Jurisdiction.

Wednesday, January 11, 2012

Expert testimony.

Practice point: Expert testimony has been found necessary when it helps to clarify an issue which calls for professional or technical knowledge, possessed by an expert and beyond the understanding of the typical juror.

Student note: The admissibility and scope of expert testimony is a determination within the discretion of the trial court.

Case: Christoforatos v. City of New York, NY Slip Op 09579 (2d Dept. 2011).

Tomorrow’s issue: Equitable estoppel.

Tuesday, January 10, 2012

Ambulance liability.

Practice point: While the operator of an ambulance owes its passengers a duty of reasonable care, that duty does not require that the operator of the vehicle ensure that an adult passenger has fastened his or her seatbelt.

Student note: Tthe New York City Fire Department's internal rules requiring that members ensure that passengers in emergency vehicles wear seatbelts imposes a greater standard of care than that imposed by law, and so a violation of Department rules cannot serve as basis for plaintiff's imposing liability.

Case: Asantewaa v. City of New York, NY Slip Op 09174 (1st Dept. 2011).

Tomorrow’s issue: Expert testimony.

Monday, January 9, 2012

The court's granting relief.

Practice point: The court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.

Student note: However, the stability of contract obligations must not be undermined by judicial sympathy with a party.

Case: Emigrant Mtge. Co., Inc. v. Fisher, NY Slip Op 09264 (2d Dept. 2011).

Tomorrow’s issue:  Ambulance liability.

Friday, January 6, 2012

Legal malpractice.

Practice point: A cause of action alleging legal malpractice may be based upon the creation of a loan document which is usurious and does not fall under any exceptions to the law of usury.

Student note: The action to recover damages arising from legal malpractice must be commenced within three years after accrual, pursuant to CPLR 214[6], and the action accrues when the malpractice is committed.

Case: DeStaso v. Condon Resnick, LLP, NY Slip Op 09259 (2d Dept. 2011).

Monday’s issue:  The court’s granting relief.

Thursday, January 5, 2012

Attorney's fees.

Practice point: A party must pay his or her own attorney's fee unless an award is authorized by an agreement between the parties, by statute, or by court rule.

Student note: The plaintiff cannot recover an award of an attorney's fee under the New York Civil Rights Law, which does not provide for such relief, pursuant to § 47-b[1]).

Case: Degregorio v. Richmond Italian Pavillion, Inc., NY Slip Op 09258 (2d Dept. 2011).

Tomorrow’s issue: Legal malpractice.

Wednesday, January 4, 2012

Vacating a default.

Practice point: To prevail on a motion to vacate a default, a party is required to demonstrate both a reasonable excuse for its default and a potentially meritorious defense

Student note: The trial court has the discretion to accept law office failure as a reasonable excuse.

Case: Adolph H. Schreiber Hebrew Academy of Rockland, Inc. v Needleman, NY Slip Op 09250 (2d Dept. 2011).

Tomorrow’s issue: Attorney’s fees.

Tuesday, January 3, 2012

Bifurcated trials.

Practice point: Courts are encouraged to bifurcate issues of liability and damages in personal injury trials, pursuant to 22 NYCRR 202.42.

Student note: A unified trial should only be conducted where the nature of the plaintiff's injuries has an important bearing on the issue of liability.

Case: Galarza v. Crown Container Co., Inc., NY Slip Op 09088 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Vacating a default.

Monday, January 2, 2012

Court holiday.

The courts are closed today to mark the New Year’s holiday.

Tomorrow’s issue: Bifurcated trials.