Trial practice.

Practice point: When there are common questions of law or fact, a joint trial is warranted unless the opposing party demonstrates prejudice to a substantial right.

Practitioners should note that prejudice can be mitigated by the trial court with the appropriate jury instructions.

Case: Pierre-Louis v. DeLonghi Am., Inc., NY Slip Op 07607 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: A trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment.

Practitioners should note that a court exceeds its powers if, sua sponte, it reconsiders summary judgment motions after the case is dismissed by judgment.

Case: Merriwether v. Osborne, NY Slip Op 07602 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Trial practice.

Family Law.

Practice point: The award of attorney's fee pursuant to Domestic Relations Law § 237[a] is within the sound discretion of the court, and the issue is controlled by the equities and circumstances of each particular case.

Practitioners should note that the court is likely to consider the financial circumstances of both parties and the relative merit of the parties' positions.

Case: Gruppuso v. Caridi, NY Slip Op 07590 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A court has the discretion to extend the time to serve a notice of claim, pursuant to General Municipal Law § 50-e[5].

Practitioners should note that the lack of a reasonable excuse will not bar the granting of leave where there is actual notice and an absence of prejudice.

Case: Erichson v. City of Poughkeepsie Police Dept., NY Slip Op 07580 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Family Law.

Contracts.

Practice point: A clear and complete writing must be enforced according to its plain terms, without reference to parol or extrinsic evidence.

Practitioners should note that the implied covenant of good faith and fair dealing inherent in every contract cannot be used to create terms that do not exist in the writing.

Case: Vanlex Stores, Inc. v. BFP 300 Madison II LLC, NY Slip Op 07677 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A defendant’s purported need to conduct discovery does not warrant denial of plaintiff’s summary judgment motion when defendant already has personal knowledge of the relevant facts.

Practitioners should note that the mere hope or speculation that, during the discovery process, evidence sufficient to defeat the motion may be uncovered is insufficient to deny the motion.

Case: Corwin v. Heart Share Human Servs. of N.Y., NY Slip Op 07575 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Contracts.

Discovery.

Practice point: A party must provide proper authorizations for the release of medical records when that party has waived the physician-patient privilege by putting his or her physical or mental condition in issue.

Practitioners should note that a plaintiff puts his or her medical condition in issue by alleging physical injury or mental anguish in the bill of particulars.

Case: Abdalla v. Mazl Taxi, Inc., NY Slip Op 07566 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.