Medical malpractice.

Practice point: There are triable issues as to whether there was continuous treatment where plaintiff’s expert opined that plaintiff was receiving treatment for gastroinestinal disorders which were symptomatic of the colon cancer defendant failed to diagnose.

Practitioners should note that there also will be questions regarding whether there was an expectation of further treatment when, following plaintiff’s last appointment, defendant instructed her to return.

Case: Harris v. Dizon, NY Slip Op 01856 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Attorneys’ fees.

Motion practice.

Practice point: Under CPLR 3211(a)(1), a dismissal is warranted only if the submitted documentary evidence conclusively establishes, as a matter of law, a defense to the asserted claims.

Practitioners should note that, pursuant to CPLR 3211(a)(7), a court may freely consider plaintiff’s affidavits to remedy any defects in the complaint. The criterion is whether there actually is a cause of action, not whether one has been stated.

Case: Amaro v. Gani Realty Corp., NY Slip Op 01852 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Medical malpractice.

Motion practice.

Practice point: Pursuant to CPLR 305(c), an amendment to correct a misnomer will be permitted if the court has jurisdiction over the intended defendant and if he was fairly apprised that he was the intended party.

Practitioners should note that the statute may not be used to correct the name of a defendant or to add or substitute a defendant.

Case: Smith v. Garo Enterprises, Inc., NY Slip Op 01790 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Municipalities Law.

Practice point: A municipality has a duty to maintain its roadways in reasonably safe condition, and this duty extends to trees which are adjacent to the road and which could pose a danger to travelers.

Practitioners should note that a municipality will not be held liable unless it had actual or constructive notice of the dangerous condition.

Case: Ferrigno v. County of Suffolk, NY Slip Op 01773 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Moton practice.

Practice point: A party who has served a summons without complaint and does not serve the complaint within 20 days of a demand must demonstrate a meritorious cause of action and a reasonable excuse for the delay in order to avoid dismissal, pursuant to CPLR 3012[d].

Practitioners should note that law office failure to discover the demand, along with the disabled plaintiff's physical difficulties in getting to counsel's office to verify the complaint, will constitute a reasonable excuse.

Case: Nolan v. Lechner, NY Slip Op 01724 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Motion practice.

Practice point: Having failed to allege intentional infliction of emotional distress in the notice of claim, plaintiff may not later maintain that cause of action in the complaint.

Practitioners should note that for a cause of action sounding in intentional infliction of emotional distress, defendant’s conduct must have been extreme, outrageous and beyond the bounds of human decency.

Case: Bayer v. City of New York, NY Slip Op 01762 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A court may dismiss an action for want of prosecution after defendant has served plaintiff with an unheeded 90-day notice, absent a showing of justifiable excuse for the delay and a good and meritorious cause of action, pursuant to CPLR 3216(e).

Practitioners should note that a certificate of merit filed by plaintiff's counsel is not a valid substitute for a medical expert's affidavit.

Case: Smith v. Montefiore Med. Ctr., NY Slip Op 01835 (1st Dept. 2009)

The opinion is here.

Tomorrow's issue: Motion practice.

Evidentiary proof.

Practice point: An unsworn incident report, prepared by defendants' general manager and submitted to show that the attack took place outside of defendants’ premises, is not evidentiary proof in admissible form if it is not authenticated by the attorney's affirmation to which it is attached, and defendants do not provide an affidavit from the general manager.

Practitioners should note that defendants’ bookkeeper’s affidavit stating that, on the night of the attack, the alleged assailant was in the club solely as a patron and not as an employee is inadmissible hearsay, since the bookkeeper does not aver that the affidavit is based on firsthand knowledge.

Case: Babikian v. Nikki Midtown, LLC, NY Slip Op 01722 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: Pursuant to CPLR 3216, a court may dismiss an action for want of prosecution only after plaintiff has been served with a written demand that plaintiff resume prosecution and serve and file a note of issue within 90 days after receiving the demand.

Practitioners should note that the demand must state that plaintiff’s noncompliance will serve as the basis for a motion to dismiss.

Case: Rose v. Aziz, NY Slip Op 02346 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Evidentiary proof.

Retainer agreements.

Practice point: An attorney's retainer agreement is a contract that is terminable at will.

Practitioners should note that, in order to sustain a cause of action based on tortious interference with a contract terminable at will, there must be a showing of wrongful conduct, such as fraudulent representations, threats or a violation of a duty of fidelity based on the parties’ confidential relationship.

Case: Lowenbraun v. Garvey, NY Slip Op 02336 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Collateral estoppel.

Practice point: A party is precluded from relitigating an issue which has been adversely decided in a prior proceeding.

Practitioners should note that the party to be precluded must have had a full and fair opportunity to contest the issue in the prior proceeding.

Case: Franklin Dev. Co., Inc. v. Atlantic Mut. Ins. Co., NY Slip Op 02321 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Retainer agreements.