Motion practice.

Practice point: CPLR 3216 allows, but does not require, dismissal of an action based on plaintiff's unreasonable neglect to proceed.

Practitioners should note that the statute prohibits dismissal when plaintiff has shown a justifiable excuse for the delay and a meritorious cause of action.

Case: Klein v. MTA Long Is. Bus, NY Slip Op 02974 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Discovery.

Practice point: A municipality may decide which of its employees will appear for deposition, but a plaintiff may demand additional witnesses when (1) the employee already deposed had insufficient knowledge, and (2) there is a substantial likelihood that the person sought has material information which is necessary to prosecuting the case.

Practitioners should note that plaintiff will likely prevail by establishing that the witness he wanted to depose was the investigating officer who signed the injury report and who made the original records that were copied into the report.

Case: Filoramo v. City of New York, NY Slip Op 02969 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

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.