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Category : Law | Tags : |
Practice point: A disposition on the merits bars litigation between the same parties, or those in privity with them, on a cause of action arising out of the same transaction or series of transactions as a cause of action which was, or which could have been, raised in a prior proceeding.
Case: Barash v. Northern Trust. Corp., NY Slip Op 06628 (2d Dept. 2008)
Practice point: The required elements of proof in a medical malpractice action are (1) a deviation or departure from good and accepted standards of medical practice, and (2) evidence that the departure was a proximate cause of plaintiff’s injury.
Case: Elias v. Bash, NY Slip Op 06587 (2d Dept. 2008)
Practice point: A school has a duty to supervise its students with the same degree of care as an ordinarily prudent parent in comparable circumstances.
Case: Doe v. Department of Education of the City of New York, NY Slip Op 06586 (2d Dept. 2008)
Practice point: A motion to strike an answer, pursuant to CPLR 3126, will be denied if defendant did not have prior notice that this sanction was imminent.
Case: Sidelev v. Tsal-Tsalko, NY Slip Op 05750 (1st Dept. 2008)
Practice point: To recover in strict liability for a dog bite, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of them. Admissible evidence would include a prior attack; the dog’s tendency to growl, snap, or bare its teeth; the way the dog was restrained; and the fact that the dog was kept as a guard dog.
Case: Grubb v. Healy, NY Slip Op 05044 (2d Dept. 2008)
Practice point: If a matter is stricken from the trial calendar and designated as inactive, but not dismissed, a plaintiff seeking to restore is not required to submit an affidavit of merit or an explanation as to why the case was removed from active status.
Case: Ross v. Brookdale Univ. Hosp. & Med. Ctr., NY Slip Op 06597 (2d Dept. 2008)
Practice point: To sustain a determination of civil contempt, a court must find that the alleged contemnor violated the court’s lawful and express order, and that, as a result, a party to the litigation was prejudiced, pursuant to Judiciary Law § 753[A][3].
Case: Village of Plandome Manor v. Ioannou, NY Slip Op 06594 (2d Dept. 2008)
Practice point: The statute of limitations for tort actions against the MTA is one year and 30 days, pursuant to Public Authorities Law § 1276[1],[2]. For negligence actions brought against the Transit Authority, the statute is one year and 90 days, pursuant to Public Authorities Law § 1212[3].
Case: Sullivan v. Atlantic Paratransit of N.Y.C., Inc., NY Slip Op 05920 (2d Dept. 2008)
Practice point: A plaintiff may properly plead a cause of action for breach of the covenant of quiet enjoyment by alleging a constructive eviction, namely, because the cooperative failed to make necessary repairs, the conditions in plaintiff’s home compelled plaintiff to move out.
Case: Granirer v Bakery, Inc., NY Slip Op 06582 (1st Dept. 2008)
Practice point: A court may set the time within which a party may move for summary judgment, pursuant to CPLR 3212(a), through a so-ordered stipulation.
Case: Ford v. City of New York, NY Slip Op 06579 (1st Dept. 2008)
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