New York Law Notes

Practice point:  Parties to a contract may agree to a time-limit for commencing an action which is less than otherwise provided in CPLR 201.

Practitioners should note that in moving to dismiss a complaint as time-barred, pursuant to CPLR 3211(a)(5), there must be a showing that defendant engaged in conduct that induced plaintiff to postpone bringing suit.

Case:  Dimmick v. New York Prop. Ins. Underwriting Assn., NY Slip Op 09745 (2d Dept. 2008)

Friday’s issue:  Promissory notes.

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Practice point:  To meet its initial burden on the issue of lack of constructive notice in a slip and fall action, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.

Practitioners should note that defendant must offer more than deposition testimony referring to the typical cleaning regimen.

Case:  Birnbaum v. New York Racing Assn., Inc., NY Slip Op 09741 (2d Dept. 2008)

Tomorrow’s issue:  Statute of limitations.

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Practice point:  Judiciary Law § 474 sets forth the general rule, namely, that compensation is governed by the attorney-client agreement, express or implied, which is otherwise not restrained by law.

Practitioners should note that, pursuant to CPLR 1207, if the action involves an infant, a judicially-declared incompetent or a conservatee, a court must approve the attorneys’ fees which are specified in a settlement.

Case:  White v. Daimler Chrysler Corp., NY Slip Op 09592 (2d Dept. 2008)

Tomorrow’s issue:  Constructive notice.

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Practice point:  A qualified privilege extends to a communication on a subject in which both persons have an interest.

Practitioners should note that the qualified privilege is defeated where a plaintiff can demonstrate that defendant’s communication was not made in good faith but was motivated solely by malice.

Case:  Phelan v. Huntington Tri-Village Little League, Inc., NY Slip Op 09576 (2d Dept. 2008)

Monday’s issue:  Attorneys’ fees.

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Courts are closed because of the Christmas holiday and so there is no post today.  Thank you for your support throughout the year and best wishes for a blessed Christmas season.

Courts reopen tomorrow and there will be a new post.

Tomorrow’s issue:  Privileged communications.

Practice point:  Failure to serve process leaves the court without personal jurisdiction over a defendant, and all subsequent proceedings are thereby rendered null and void.

Practitioners should note that, pursuant to CPLR 5015(a)(4), a default judgment must be vacated once a movant demonstrates the lack of personal jurisdiction.

Case:  Hossain v. Fab Cab Corp., NY Slip Op 09561 (2d Dept. 2008)

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Practice point: Painting is a covered activity, pursuant to § 240(1), and, in order to be actionable, it need not be incidental to other specified activities such as construction, repair or alteration.

Practitioners should note that, by itself, a fall from a ladder is insufficient to impose statutory liability. There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing plaintiff’s injuries.

Case:  Artoglou v. Gene Scappy Realty Corp., NY Slip Op 09542 (2d Dept. 2008)

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Practice point:  To estop the assertion of a statute of limitations defense, plaintiff must establish by clear and convincing evidence that the action was not timely commenced because of defendant’s fraud, deception or misrepresentation.

Practitioners should note that the statute will not be tolled when plaintiff failed to plead either fraud or fraudulent concealment, but only alleged medical malpractice based on defendant’s failure to appreciate the information contained in a radiology report.

Case:  Bayuk v. Gilbert, NY Slip Op 09460 (1st Dept. 2008)

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Practice point: A corporation must appear by an attorney, pursuant to CPLR 321(a).

Practitioners should note that, to avoid the statutory requirement, the corporation may assign its claims to an appropriate individual plaintiff.

Case:  Kinlay v. Henley, NY Slip Op 09450 (1st Dept. 2008)

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Practice point: Deposition testimony that the floor on which plaintiff slipped was “very shiny” and “overwaxed,” without more, does not support an inference of negligent waxing or polishing.

Practitioners should note that no inference of negligence can be drawn from the fact that, after plaintiff fell, a carpet and a warning sign were placed on the floor.

Case: Purcell v. York Bldg. Maintenance Corp., NY Slip Op 09439 (1st Dept. 2008)

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