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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.