Motion practice.

Practice point: Plaintiff’s motion for disclosure will be denied when defendant demonstrates that the reports sought were prepared in anticipation of litigation, pursuant to CPLR 3101[d][2].

Practitioners should note that movant must make a showing that there is a substantial need of the materials in preparing the case, and that the materials’ substantial equivalent cannot otherwise be obtained without undue hardship.

Case: Lakes v. Lavelle School for the Blind, NY Slip Op 02899 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Discovery.

Motion practice.

Practice point: Pursuant to 22 NYCRR 130-1.1-a(a), an attorney certifies to the accuracy of the contents of litigation papers by signing them.

Practitioners should note that papers are considered frivolous if they assert material statements that are false, pursuant to 22 NYCRR § 130-1.1[c][3]), and frivolous conduct is continued when its lack of factual basis becomes apparent.

Case: Matter of 155 W. 21st St., LLC v. McMullan, NY Slip Op 02884 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: To support a cause of action sounding in age discrimination, a plaintiff must demonstrate (1) membership in a protected class; (2) constructive discharge; (3) qualification to hold the position; and (4) circumstances giving rise to an inference of discrimination.

Practitioners should note that, in order to win on the motion to dismiss, a defendant must demonstrate either that plaintiff cannot establish the elements of intentional discrimination, or that there is no triable issue as to whether defendant’s facially legitimate and nondiscriminatory reasons for the termination were pretextual.

Case: Balsamo v. Savin Corp., NY Slip Op 02737 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Venue.

Practice point: Venue is based on the parties' residence, pursuant to CPLR 503[a], not where the cause of action arose. The residence of a natural person is the abode, not the office.

Practitioners should note that the certificate of incorporation’s designation of a county as the location of a principal office determines corporate residence, even if there is an office in another county.

Case: Addo v. Melnick, NY Slip Op 02720 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Administrative Law.

Practice point: A police officer may not recover damages for common-law negligence where an act taken in furtherance of a specific police function exposed the officer to a heightened risk of sustaining the injury.

Practitioners should note that there is no cause of action when the officer is injured while participating in a physical fitness examination intended to mimic the physical activity that officers will encounter in the field.

Case: Norman v. City of New York, NY Slip Op 01964 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Venue.

Labor Law.

Practice point: To establish liability based on a falling object, pursuant to § 240(1), a plaintiff must show that, when the object fell, it was being hoisted or secured, or that it required securing for purposes of the work.

Practitioners should note that the statute generally does not apply to objects that are part of a building's permanent structure.

Case: Marin v. AP-Amsterdam 1661 Park LLC, NY Slip Op 01959 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Administrative Law.

Attorneys' fees.

Practice point: Plaintiff-law firm was entitled to summary judgment on its claim of account stated with a showing that defendant received and retained the invoice without objection. Plaintiff also established a claim sounding in quantum meruit by showing the firm's performance of services, and defendant’s acceptance of those services.

Practitioners should note that plaintiff's failure to comply with retainer agreement rules, pursuant to 22 NYCRR 1215.1, does not preclude it from suing to recover legal fees for its services.

Case: Miller v. Nadler, NY Slip 01862 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

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.

Respondeat superior.

Practice point: An employer may be held liable for its employee’s negligent or intentional acts if the tortious conduct is generally foreseeable and a natural incident of the employment.

Practitioners should note that liability will not attach for torts committed by an employee who is acting solely for personal motives unrelated to advancing the employer's business.

Case: Fernandez v. Rustic Inn, Inc., NY Slip Op 02320 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Collateral estoppel.

Legal malpractice.

Practice point: Absent fraud, collusion or malicious acts, an attorney is not liable to third parties not in privity for harm caused by professional negligence.

Practitioners should note that an estate, acting in its own right, may not maintain an action for legal malpractice.

Case: Estate of Saul Schneider v. Finmann, NY Slip Op 02319 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Respondeat superior.

Motion practice.

Practice point: Only an aggrieved party may appeal from an order, pursuant to CPLR 5511.

Practitioners should note that a party is aggrieved by an order when it directly affects that party's individual rights.

Case: Berrechid v. Shahin, NY Slip Op 02312 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

Administrative Law.

Practice point: To have standing to challenge a governmental action, a party must show an injury in fact.

Practitioners should note that petitioners must show that they have suffered an injury distinct from an injury to the general public.

Case: McAllan v. New York State Dept. of Health, NY Slip Op 01715 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.