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.