Monday, November 30, 2009

Motion practice.

Practice point: When plaintiff fails to serve a responsive bill of particulars following a conditional order of preclusion, the order becomes absolute.

Practitioners should note that, to avoid the adverse impact of the conditional order, plaintiff must demonstrate a reasonable excuse for the failure to comply and a meritorious cause of action.

Case: Panagiotou v. Samaritan Vil., Inc., NY Slip Op 07811 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Arbitration.

Friday, November 27, 2009

Res judicata.

Practice point: A final disposition on the merits bars litigation between the same parties on any other claims arising from the same transaction or the same or related facts, even if based upon a different theory involving different elements of proof.

Practitioners should note that the rule applies also to claims that could have been raised in the prior litigation.

Case: Shelley v. Silvestre, NY Slip Op 07822 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Thursday, November 26, 2009

Happy Thanksgiving.

Thank you for following NEW YORK LAW NOTES throughout the year.

The courts reopen tomorrow and we will be posting again.

Tomorrow's issue: Res judicata.

Wednesday, November 25, 2009

Municipalities Law.

Practice point: On a motion for leave to serve a late notice of claim, the court will consider whether the municipality had actual knowledge of the essential facts within a reasonable time after the claim arose; whether there is a reasonable excuse for the failure to serve timely; and whether the municipality would be prejudiced in maintaining its defense.

Practitioners should note that the notice must give the municipality knowledge of the specific claim and not some general knowledge that a wrong has been committed.

Case: Wright v. City of New York, NY Slip Op 07856 (2d Dept. 2009)

The opinion is here.

Friday’s issue: Res judicata.

Tuesday, November 24, 2009

Labor Law.

Practice point: Where plaintiffs' injuries result from an allegedly dangerous condition on the property, and not the way the work was being performed, a property owner will be liable under a theory of common-law negligence, as codified by § 200.

Practitioners should note that a general contractor may be held liable if it had control over the work site and actual or constructive notice of the dangerous condition.

Case: Bridges v. Wyandanch Community Dev. Corp., NY Slip Op 07782 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Monday, November 23, 2009

Motion practice.

Practice point: The showing of merit required on a motion to restore is less than that required to defend a motion for summary judgment.

Practitioners should note that a finding of merit sufficient to vacate a plaintiff's default does not preclude a subsequent granting of summary judgment to defendants.

Case: Bowman v. Beach Concerts, Inc., NY Slip Op 07747 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Friday, November 20, 2009

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.

Thursday, November 19, 2009

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.

Wednesday, November 18, 2009

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.

Tuesday, November 17, 2009

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.

Monday, November 16, 2009

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.

Friday, November 13, 2009

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.

Thursday, November 12, 2009

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.

Wednesday, November 11, 2009

Torts.

Practice point: A ball park’s proprietor is not required to protect all spectators, but must provide screening for those seated behind home plate where there is the greatest danger of being struck by a ball.

Practitioners should note that the screening must provide adequate protection for as many spectators as may reasonably be expected to be in that location during a typical game.

Case: Correa v. City of New York, NY Slip Op 07512 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Discovery.

Tuesday, November 10, 2009

Motion practice.

Practice point: A motion to vacate a dismissal for failure to appear at a scheduled court conference must be made within one year of service of a copy of the dismissal order with notice of entry, and be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action, pursuant to CPLR 5015.

Practitioners should note that where the dismissal order has never been served with notice of entry, there is no time limit on making a motion to vacate the dismissal.

Case: Donnelly v. Treeline Cos., NY Slip Op 07504 (1st Dept 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Monday, November 9, 2009

Motion practice.

Practice point: A party that does not offer court-ordered disclosure is subject to preclusion of its evidence, pursuant to CPLR 3126.

Practitioners should note that the sanction is within the broad discretion of the court, and likely will not be disturbed on appeal.

Case: Emmitt v. City of New York, NY Slip Op 07331 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A party that does not offer court-ordered disclosure is subject to preclusion of its evidence, pursuant to CPLR 3126.

Practitioners should note that the sanction is within the broad discretion of the court, and likely will not be disturbed on appeal.

Case: Emmitt v. City of New York, NY Slip Op 07331 (1st Dept. 2009)



Tomorrow’s issue: Motion practice.

Friday, November 6, 2009

Contracts.

Practice point: If the language is ambiguous, its construction presents a question of fact that cannot be resolved on a motion for summary judgment.

Practitioners should note that the rule that ambiguous language will be construed against the drafter does not apply when the agreement resulted from negotiations between commercially sophisticated entities.

Case: Shadlich v. Rongrant Assoc., LLC, NY Slip Op 07394 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Thursday, November 5, 2009

Motion practice.

Practice point: Defendant’s motion to dismiss, pursuant to CPLR 3126, may be denied if plaintiff provides the requested disclosure while the motion is pending.

Practitioners should note that the court's direction that defendant provide plaintiff with the identities of certain employees does not impinge on defendant’s right to select a witness to produce for deposition.

Case: Lopes v. Metropolitan Tr. Auth., NY Slip Op 07379 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Wednesday, November 4, 2009

Motion practice.

Practice point: In a medical malpractice action, evidence of a defendant’s insurance is inadmissible.

Practitioners should note that, where testimony concerning insurance comes out at trial, even if innocently by counsel, a postverdict motion for a mistrial may be granted, even where the offending testimony had been stricken from the record.

Case: Grogan v. Nizam, NY Slip Op 07375 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Tuesday, November 3, 2009

Motion practice.

Practice point: If plaintiff's prior medical condition might affect the amount of recoverable damages, the medical records are material and necessary to the defense, and a motion to compel their production will be granted.

Practitioners should note that if plaintiff's certificate of readiness incorrectly stated that all pretrial discovery, including physical examinations, had been completed, this is a misstatement of a material fact and the motion to vacate the note of issue and certificate of readiness will be granted.

Case: Amoroso v. City of New York, NY Slip Op 07212 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Monday, November 2, 2009

Torts.

Practice point: A hospital cannot be held vicariously liable for the malpractice of a private attending physician who is not its employee.

Practitioners should note that there is an exception to the rule where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing.

Case: Schultz v. Shreedhar, NY Slip Op 07244 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.