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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.