Wednesday, October 31, 2012

A fall from a ladder at the worksite.

Practice point: Labor Law § 240(1) imposes a nondelegable duty and absolute liability for workers' injuries proximately caused  by an owner's failure to provide safety devices necessary to protect workers subject to the risks inherent in elevated work sites.

Student note: Although a fall from a ladder, by itself, is not sufficient to impose § 240(1) liability, liability will be imposed when the evidence shows that the  ladder was inadequately secured and that the failure to secure the ladder was a substantial factor in causing the plaintiff's injuries.

Case: Canas v. Harbour at Blue Point Home Owners Assn., Inc., NY Slip Op 07082 (2d Dept. 2012).

Tomorrow’s issue: Improper service of an order to show cause.

Tuesday, October 30, 2012

Motion to change venue denied.

Practice point: The moving defendant failed to substantiate its claim that, upon the discontinuance of this action against the other defendant, none of the parties was a resident of Queens County, since it failed to submit any proof as to its own residence, pursuant to CPLR 503[a], [c].

Student note: Additionally, the moving defendant failed to demonstrate that venue should be transferred based on the convenience of witnesses, pursuant to CPLR 510[3].

Case: Amoroso v. Stop & Shop, NY Slip Op 07081 (2d Dept. 2012).

Tomorrow’s issue: A fall from a ladder at the worksite.

Monday, October 29, 2012

Dismissing a complaint.

Practice point: The complaint was dismissed after plaintiff failed to comply with two court orders despite the fact that the second order clearly warned plaintiff that its action would be dismissed unless it complied. Plaintiff's supplemental discovery response was late and incomplete, its excuse for failing to respond in a timely manner lacked merit, and it did not offer any excuse for those documents that it has still not exchanged.

Student note: The court found that it could be reasonably inferred that plaintiff's conduct had met the dismissal standard of willful and contumacious.

Case: LaSalle Talman Bank, F.S.B. v. Weisblum & Felice, NY Slip Op 06864 (1st Dept. 2012).

Tomorrow’s issue: Motion to change venue denied.

Friday, October 26, 2012

Default judgments.

Practice point: On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing.

Student note: Improper service of the summons and complaint is a defense that may be waived, pursuant to CPLR 3211[e].

Case: Dupps v. Betancourt, NY Slip Op 06915 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Dismissing a complaint.

Thursday, October 25, 2012

Legal malpractice.

Practice point: The standard to which the defendant's conduct is to be compared is not that of the most highly skilled attorney, nor is it that of the average member of the legal profession, but that of an attorney who is competent and qualified. The conduct of legal matters routinely involve questions of judgment and discretion as to which even the most distinguished members of the profession may differ. Absent an express agreement, an attorney is not a guarantor of a particular result, and may not be held liable in negligence for the exercise of appropriate judgment that leads to an unsuccessful result.

Student note:  It follows that the selection of one among several reasonable courses of action does not constitute malpractice. Attorneys are free to act in a manner that is reasonable and consistent with the law as it existed at the time of representation, without exposing themselves to liability for malpractice.

Case: Bua v.Purcell & Ingrao, P.C., NY Slip Op 06908 (2d Dept. 2012).

Tomorrow’s issue:  Default judgments.

Wednesday, October 24, 2012

Strict products liability.

Practice point: The defendants established prima facie entitlement to judgment as a matter of law by demonstrating that the solvent-based sealer, as designed, was reasonably safe for its intended use; that is, the utility of the product outweighed its inherent danger. Specifically, the defendants' expert affidavits established that the volatile solvent contained in the defendants' sealer was critical to the sealer's ability to dry quickly and results in a quality finish to the wood upon which it is applied, that the sealer is cost effective for users, and that the sealer may be safely used when the warnings and instructions provided on the sealer's label are followed.

In opposition, however, the plaintiff raised a triable issue of fact as to whether the utility of the solvent-based sealer did not outweigh its inherent danger because particular water-based sealers, which were safer than the solvent-based sealer, were equally useful.

Student note: A summary judgment motion will be defeated if plaintiff submits evidence sufficient to raise a triable issue as to whether a product’s utility outweighs its inherent danger.

Case: Andrade v. T.C. Dunham Paint Co., Inc., NY Slip Op 06905 (2d Dept. 2012).

Tomorrow’s issue: Legal malpractice.

Tuesday, October 23, 2012

Adverse possession.

Practice point: Where there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely. To establish a claim, the occupation of the property must be (1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of at least 10 years. Because the acquisition of title by adverse possession is not favored under the law, the elements must be proven by clear and convincing evidence.

Student note: The character of the possession must be such that it would give the owner a cause of action in ejectment against the occupier. In addition, where the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was usually cultivated or improved or protected by a substantial inclosure.

Case: Air Stream Corp. v. 3300 Lawson Corp., NY Slip Op 06903 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Strict products liability.

Monday, October 22, 2012

Accountant malpractice claims.

Practice point: The cause of action accrues upon the client's receipt of the accountant's work product.

Student note: A cause of action to recover damages for nonmedical professional malpractice must be commenced within three years after the cause of action accrues.

Case: Rodeo Family Enters., LLC v. Matte, NY Slip Op 06793 (2d Dept. 2012).

Tomorrow’s issue: Adverse possession.

Friday, October 19, 2012

Judicial review of a university's discipline of a professor.

Practice point: Judicial review of an academic institution's disciplinary determinations is limited to whether it substantially adhered to its own published rules and guidelines, and whether the determinations are based on a rational interpretation of the relevant evidence.

Student note: When a university has not substantially complied with its own guidelines or its determination is not rationally based upon the evidence, the determination will be annulled as arbitrary and capricious.

Case: Matter of Kickertz v. NYU, NY Slip Op 06834 (1st Dept. 2012).

Monday’s issue:  Accountant malpractice claims.

Thursday, October 18, 2012

A civilian's liability for providing information to law enforcement.

Practice point: A civilian will not be held liable for false arrest or false imprisonment.for furnishing information to law enforcement authorities who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed.

Student note: To be liable for false arrest or false imprisonment, the civilian must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition.

Case: Petrychenko v. Solovey, NY Slip Op 06792 (2d Dept. 2012).

Tomorrow’s issue: Judicial review of a university’s discipline of a professor.

Wednesday, October 17, 2012

Contractor liability.

Practice point: A contractor that performs its work in accordance with contract plans is not lliable unless those plans are so patently defective as to place a contractor of ordinary prudence on notice that the project, if completed according to the plans, is potentially dangerous.

Student note: As a general rule, a builder or contractor is justified in relying upon the plans and specifications which he has contracted to follow.

Case: Nichols-Sisson v. Windstar Airport Serv., Inc., NY Slip Op 06788 (2d Dept. 2012).

Tomorrow’s issue: A civilian’s liability for providing information to law enforcement.

Tuesday, October 16, 2012

Assault, and whether words alone rise to the level.

Practice point: To plead a cause of action to recover damages for assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent apprehension of harmful contact.

Student note: While an action for an assault need not involve physical injury, but only a grievous affront or threat to the person of the plaintiff, words, without some menacing gesture or act accompanying them, ordinarily will not be sufficient to state a cause of action.

Case: Gould v. Rempel, NY Slip Op 06779 (2d Dept. 2012).

Tomorrow’s issue: Contractor liability.

Monday, October 15, 2012


Practice point: The cause of action sounding in defamation was dismissed, pursuant to CPLR 3211(a)(1), because defendant’s documentary evidence established conclusively that the plaintiff, in a matrimonial action, consented to the admission of the court-ordered report.

Student note: An essential element of a defamation claim is that the alleged defamatory statement was published without privilege or authorization.

Case: Baker v. Inamdar, NY Slip Op 06770 (2d Dept. 2012).

Tomorrow’s issue: Assault, and whether words alone rise to the level.

Friday, October 12, 2012

Vacating a dismissal order.

Practice point: To vacate the dismissal order and restore the action to the trial calendar, a plaintiff is required to demonstrate both a reasonable excuse for the default in proceeding with trial and a potentially meritorious cause of action, pursuant to CPLR 5015[a][1].

Student note: Here, where the plaintiffs' trial attorney was actually engaged in another matter on the scheduled trial date, and this was his first request for an adjournment, the plaintiffs demonstrated a reasonable excuse for the default, notwithstanding the technical defect in counsel's affirmation of engagement. In addition, the affidavit of merit provided by the plaintiffs' medical expert was sufficient to establish the existence of a potentially meritorious cause of action.

Case: Piper-Rader v. Muslim, NY Slip Op 06592 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Defamation.

Thursday, October 11, 2012

Motion to dismiss for failure to serve and file a note of issue, and preclusion from testifying at trial.

Practice point: The complaint was not dismissed on the grounds that plaintiff defied the court's order to serve and file a note of issue because, although court orders may constitute a written demand to serve and file a note of issue under CPLR 3216(b)(3), the order here did not give plaintiff the required 90 days to serve and file a note of issue, or contain a statement that failure to timely do so would serve as a basis for a motion to dismiss.

Student note: Plaintiff was precluded from testifying at trial because of an irresponsible approach to discovery. Plaintiff failed to appear on the court-ordered date for deposition, despite defendants' attempts to confirm her availability before the deposition date; never apprised the court of her inability to be deposed that day, despite clear directives to do so in the preliminary conference order; never explained her failure to do any of the foregoing; and failed to timely respond to interrogatories by the discovery deadline, despite multiple requests to do so.

Case: Mehta v. Chugh, NY Slip Op 06645 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Vacating a dismissal order.

Wednesday, October 10, 2012

Motion for leave to amend a pleading and motion to dismiss.

Practice point: A motion for leave to amend a pleading should be freely granted in the absence of prejudice or surprise resulting directly from the delay, unless the amendment would be palpably insufficient or patently devoid of merit, pursuant to CPLR 3025[b]. Here, the defendant had not moved before serving his answer to dismiss the complaint on the ground of lack of standing, and he did not raise the defense of lack of standing in his answer. By not raising the defense at that time, he failed to put the plaintiff on notice of the defense at a time the plaintiff could have cured any defect by promptly recommencing the action. The defendant failed to oppose the plaintiff's motion for summary judgment on the complaint, and he waited more than seven additional months after the motion for summary judgment had been granted before moving for leave to amend his answer to assert the defense of lack of standing. Under these circumstances, the branch of the motion for leave to amend the answer was denied.

Student note: For the same reasons, the branch of the motion to dismiss the complaint for lack of standing was denied.

Case: HSBC Bank USA v. Philistine, NY Slip Op 06580 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion to dismiss for failure to serve and file a note of issue, and preclusion from testifying at trial.

Tuesday, October 9, 2012

General contractors' and owners' liability for accidents.

Practice point: A general contractor may be liable in common-law negligence and under Labor Law § 200 if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it. An owner's duty to provide a safe place to work encompasses the duty to make reasonable inspections, and the question of whether the danger should have been apparent upon visual inspection is generally a question of fact.

Student note: Constructive notice may be imputed to the general contractor if the dangerous condition is visible and apparent and existed for a sufficient length of time prior to the accident to permit the general contractor to discover it and remedy it. 

Case:  McLean v. 405 Webster Ave., Assoc., NY Slip Op 06286 (2d Dept. 2012). 

Here is the decision. 

Tomorrow's issue: Motion for leave to amend a pleading and motion to dismiss.

Monday, October 8, 2012

Court holiday.

The courts are closed today to mark Columbus Day.

Tomorrow's issue is general contractors' and owners' liability for accidents.

Friday, October 5, 2012

Awarding possession of the marital residence.

Practice point: Exclusive possession of the marital residence is usually granted to the spouse who has custody of the minor children of the marriage.

Student note: In making the determination, the court will weigh the need of the custodial parent to occupy the marital residence against the financial need of the parties.

Case: Greisman v. Greisman, NY Slip Op 06280 (2d Dept. 2012).

Here is the decision.

Tuesday’s issue: General contractors’ and owners’ liability for accidents.

Thursday, October 4, 2012

A landowner's liability for criminal conduct.

Practice point: Owners of residential developments have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including a third party's foreseeable criminal conduct.

Student note: There is foreseeable danger when past experience alerts the landlord to the likelihood of criminal conduct on the part of third persons

Case: Diaz v. Sea Gate Assn., Inc., NY Slip Op 06276 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Awarding possession of the marital residence.

Wednesday, October 3, 2012

Appellate practice.

Practice point: No appeal lies from a judgment made upon the default of the appealing party, pursuant to CPLR 5511.

Student note: As a general rule, the Appellate Division does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so.

Case: Asman v. Durst, NY Slip Op 06272(2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: A landowner’s liability for criminal conduct.

Tuesday, October 2, 2012

Agreements to waive claims.

Practice point: Parties to arm's-length transactions may agree to waive claims based on personal liability.

Student note: Contractual provisions that absolve a party of its own negligence are enforceable, absent evidence of gross negligence.

Case: 261 E. 78th Realty Corp. v. Bernstein, NY Slip Op 06260 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Appellate practice.

Monday, October 1, 2012

Enforcing a forum selection clause.

Practice point: As a general rule, only parties in privity of contract may enforce terms of the contract such as a forum selection clause found within the agreement.

Student note: There are three sets of circumstances under which a nonparty may invoke a forum selection clause: (1) a third-party beneficiary of the agreement may enforce a forum selection clause; (2) parties to a global transaction who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause; and (3) a nonparty that is closely related to one of the signatories can enforce a forum selection clause.

Case: May v. US HIFU, LLC, NY Slip Op 06194 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Agreements to waive claims.