Friday, October 30, 2009

School Law.

Practice point: School officials must make a report when they have reasonable cause to suspect that a student is abused or maltreated, pursuant to Social Services Law § 413[1] and 415.

Practitioners should note that there is immunity from liability for making good faith child protective reports, pursuant to § 419.

Case: Biondo v. Ossining Union Free School Dist., NY Slip Op 07368 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Torts.

Thursday, October 29, 2009

Municipalities Law.

Practice point: Service of a notice of claim within 90 days after accrual is a condition precedent to commencing a tort action against a municipal defendant.

Practitioners should note that late service may be allowed, but plaintiff must move for leave of the court within one year and 90 days of the accrual date, pursuant to General Municipal Law § 50-e(5).

Case: McShane v. Town of Hempstead, NY 07235 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: School Law.

Wednesday, October 28, 2009

Employment Law.

Practice point: An at-will employee has a cause of action alleging tortious interference with employment on a showing that the defendant utilized wrongful means to effect the employee’s termination.

Practitioners should note that plaintiff must show: (1) the existence of a business relationship between the plaintiff and a third party; (2) defendant’s interference with that business relationship; (3) that the defendants acted with the sole purpose of harming plaintiff or used dishonest, unfair, improper or illegal means that amounted to a crime or an independent tort; and (4) that such acts resulted in the injury to plaintiff's relationship with the third party.

Case: McHenry v. Lawrence, NY Slip Op 07234 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Tuesday, October 27, 2009

Motion practice.

Practice point: A complaint may not be dismissed for failure to prosecute when plaintiff has shown a justifiable excuse for the delay and a meritorious cause of action, pursuant to CPLR 3216[e].

Practitioners should note that plaintiff may avoid dismissal even absent this dual showing.

Case: Ferrera v. Esposit, NY Slip Op 07224 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Monday, October 26, 2009

Motion practice.

Practice point: To establish entitlement to a preliminary injunction, a movant must establish (1) the likelihood of success on the merits, (2) irreparable harm absent an injunction, and (3) a balance of the equities in favor of granting the injunction.

Practitioners should note that “irreparable injury” has been held to mean any injury for which money damages are insufficient.

Case: Di Fabio v. Omnipoint Communications, Inc., NY Slip Op 07223 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Friday, October 23, 2009

Motion practice.

Practice point: The factor of infancy, standing alone, does not compel the granting of a motion for leave to serve a late notice of claim.

Practitioners should note that merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not establish that the medical staff, by its acts or omissions, inflicted an injury on the plaintiff.

Case: Contreras v. KBM Realty Corp., NY Slip 07220 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Thursday, October 22, 2009

Foreclosures Law.

Practice point: A referee cannot alter the terms of a judgment of foreclosure, and unauthorized variations between the terms of sale and the judgment are void.

Practitioners should note that, as a matter of equity, a court has the discretion to set aside a foreclosure sale if there is evidence of fraud, collusion, mistake, or misconduct.

Case: Cicorelli v. Hickey's Carting, Inc., NY Slip Op 07219 (2d Dept. 2009)

The opinion is here.

Tomorrow's issue: Motion practice.

Wednesday, October 21, 2009

Motion practice.

Practice point: A verdict may not be set aside as being against the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence.

Practitioners should note that the issue of an expert witness’s credibility is considered up to the jury.

Case: Abdelkader v. Shahine, NY Slip Op 07210 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Foreclosures Law.

Tuesday, October 20, 2009

Employment Law.

Practice point: By including vulgar language on a patient’s discharge form, which the patient, without having read it, gave to her employer, a doctor is acting outside the scope of his employment, and the hospital cannot be held liable under a theory of respondeat superior.

Practitioners should note that the conduct challenged here, while offensive and bizarre, does not meet the requirement of outrageous conduct so as to be actionable as intentional infliction of emotional distress.

Case: Suarez v. Bakalchuk, NY Slip Op 07150 (1st Dept.)

The opinion is here.

Tomorrow’s issue: Motion practice.

Monday, October 19, 2009

Trusts and Estates.

Practice point: A valid inter vivos gift requires that the donor intend to make an irrevocable present transfer of ownership.

Practitioners should note that there must be either physical, constructive or symbolic delivery to the donee sufficient to divest the donor of dominion and control over the property, and acceptance by the donee.

Case: Matter of Baum, NY Slip Op 06782 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Friday, October 16, 2009

Vehicle and Traffic Law.

Practice point: Merely speeding down the street, even alongside another vehicle, does not constitute a “speed contest,” within the meaning of § 1182(1).

Practitioners should note that a statutory violation requires that some kind of race course must have been planned by the drivers. It is not enough that two automobiles left an intersection when the traffic light turned green and, thereafter, travelled side-by-side at 55 miles an hour, with each car jockeying for position.

Case: MIC Prop. & Cas. Corp. v. Avila, NY Slip Op 06813 (2d Dept. 2009)

The opinion is here.

Monday’s issue : Trusts and Estates.

Thursday, October 15, 2009

Labor Law.

Practice point: § 741(2)(a) prohibits retaliatory action against covered employees who disclose or threaten to disclose a hospital’s policy or practice that the employee, in good faith, reasonably believes constitutes an improper quality of patient care.

Practitioners should note that “improper quality of care” means any procedure, action or failure to act which violates a law or rule, where the violation may present a danger to the public health or to the health of a specific patient, pursuant to § 741[1][d]).

Case: Luiso v. Northern Westchester Hosp. Ctr., NY Slip Op 06810 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Vehicle and Traffic Law.

Wednesday, October 14, 2009

Law of the case.

Practice point: The doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision.

Practitioners should note that the doctrine is not binding on an appellate court.

Case: Lehman v. North Greenwich Landscaping, LLC, NY Slip Op 06808 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Tuesday, October 13, 2009

Legal malpractice.

Practice point: The action must be commenced within three years of accrual, pursuant to CPLR 214[6] and 203[a], and accrual occurs when the malpractice is committed.

Practitioners should note that, under the doctrine of continuous representation, the statute of limitations is tolled while there is ongoing representation on the same matter in which the malpractice is alleged.

Case: Waggoner v. Caruso, NY Slip Op 06739 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Law of the case.

Friday, October 9, 2009

Torts.

Practice point: Governmental immunity does not insulate a defendant from liability for its employee’s negligence in carrying an ill person down a stairway, as such an act is plainly ministerial in nature, rather than discretionary or quasi-judicial.

Practitioners should note that if an EMS worker undertakes the affirmative action to treat the patient, the treatment must be done with due care.

Case: Velazquez v. New York City Health & Hosp. Corp., NY Slip Op 06735 (1st Dept. 2009)

The opinion is here.

Tuesday’s issue: Legal malpractice.

Thursday, October 8, 2009

Employment Law.

Practice point: In claiming racial discrimination, there must be a prima facie showing that plaintiff is a member of a protected class; was qualified for the position and was terminated or suffered some other adverse employment action; and that the termination or adverse action took place under circumstances giving rise to an inference of discrimination. The burden then shifts to the employer to set forth legitimate and nondiscriminatory reasons to support its employment decision. The burden shifts again and plaintiff must prove that the reasons offered by the defendant were merely a pretext for the discrimination.

Practitioners should note that after-acquired evidence is not a bar to litigation and does not warrant summary judgment, but only affects the plaintiff's damages if and when the employer is found liable.

Case: Baldwin v. Cablevision Sys. Corp., NY Slip Op 06718 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Wednesday, October 7, 2009

Motion practice.

Practice point: A plaintiff demonstrates entitlement to a default judgment by submitting proof of service; proof of the facts constituting its claim; and proof of defendant's default in answering or appearing, pursuant CPLR 3215[f].

Practitioners should note that, to avoid the entry of a default judgment, defendant must demonstrate a reasonable excuse for default and a meritorious defense to the action, pursuant to CPLR 5015[a][1].

Case: Mercury Cas. Co. v. Surgical Ctr. at Milburn, LLC, NY Slip Op 06516 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Tuesday, October 6, 2009

Municipalities Law.

Practice point: The City cannot be held vicariously liable for the negligence or intentional acts of the New York City Board of Education, since it is a separate and distinct entity.

Practitioners should note that, on a motion to dismiss, the court's only function is to determine whether the alleged facts fit within any cognizable legal theory.

Case: McClain v. City of New York, NY Slip Op 06409 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Monday, October 5, 2009

Corporations.

Practice point: A business may incorporate for the express purpose of escaping personal liability, but equity will pierce the corporate veil and permit the imposition of personal liability in order to avoid fraud or injustice.

Practitioners should note that a party seeking to pierce the corporate veil must show that the corporation’s owner exercised complete domination over it in the transaction at issue, and that this domination was used to commit a fraud or wrong.

Case: Shkolnik v. Krutoy, NY Slip Op 06677 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Friday, October 2, 2009

Motion practice.

Practice point: An evidentiary ruling made before trial is generally reviewable only in connection with an appeal from the judgment after trial.

Practitioners should note that no discrete appeal lies from an order granting a motion to preclude proposed expert testimony.

Case: Santos v. Nicolas, NY Slip Op 06602 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Corporations.

Thursday, October 1, 2009

Motion practice.

Practice point: A motion to dismiss a complaint based on documentary evidence will be granted only when the evidence utterly refutes plaintiff's factual allegations, and establishes a defense as a matter of law.

Practitioners should note that leave to amend the complaint will be given absent prejudice or surprise.

Case: Stein v. Garfield Regency Condominium, NY Slip Op 06531 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.