June 30, 2008
Actions in equity.
Practice point: In an action sounding in equity, the recovery of interest is within the court’s discretion, pursuant to CPLR 5001[a].
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June 27, 2008
Preclusion of expert testimony.
Practice point: Preclusion for failure to comply with CPLR 3101(d) is improper unless there is evidence of intentional or willful failure to disclose and a showing of prejudice.
June 26, 2008
Failure to communicate medical findings.
Practice point: A defendant-physician may be held liable for ordinary negligence for a failure to communicate significant medical findings to a patient.
June 25, 2008
Defective products.
Practice point: Whether pleading in strict products liability, breach of warranty or negligence, a consumer-plaintiff has the burden of showing that a product’s defect was a substantial factor in causing the alleged injury, and proof of injury, standing alone, is insufficient to prove that the product was defective for its intended use.
June 24, 2008
Statute of Limitations.
Practice point: The tolling of the statute of limitations for the alleged disability of insanity may not extend the limitations period beyond ten years after the cause of action accrues, pursuant to CPLR 208.
June 23, 2008
Mortgage contingency clauses.
Practice point: Where a contract for the sale of real property contains a mortgage contingency clause, purchasers are entitled to recover their down payment if the mortgage is not approved, as long as they made a genuine effort to secure mortgage financing and acted in good faith.
June 20, 2008
Retaining liens.
Practice point: If discharged for cause, an attorney is not entitled either to a retaining lien or compensation.
June 19, 2008
General Obligations Law § 395-b.
Practice point: There is no private right of action based on this statute which prohibits premises’ owners or managers from knowingly permitting installation of a viewing device “for the purpose of surreptitiously observing the interior of any fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to guests or patrons in a motel, hotel or inn.”
June 18, 2008
Written releases.
Practice point: General Obligations Law § 5-326 does not invalidate a release executed by a New York City Marathon runner, since the entry fee is for participation in the marathon, and is not an admission fee allowing the runner to use the City-owned public roadways over which the marathon is run.
June 17, 2008
Prior written notice.
Practice point: A municipality with a prior written notice statute is not liabile for injuries caused by an improperly maintained roadway, absent the notice, unless (1) the municipality created the defect through an affirmative act of negligence, or (2) the municipality derived a special benefit from a special use of the roadway.
