Motion practice.

Practice point: On a motion for summary judgment in a medical malpractice action, defendant must establish the absence of any departure from good and accepted medical practice, or that plaintiff was not injured thereby.

Practitioners should note that, in opposition, plaintiff must submit a physician's affidavit attesting to defendant's departure from accepted practice, and that the departure was a competent producing cause of the injury. Conclusory allegations which are unsupported by competent evidence are insufficient to defeat summary judgment.

Case: Flanagan v. Catskill Regional Medical Center, NY Slip Op 06161 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Appellate practice.

Motion practice.

Practice point: Pursuant to CPLR 3212(f), a trial court has the discretion to deny a motion for summary judgment or to order a continuance if facts essential to an opposition may exist, but cannot then be stated.

Practitioners should note that there must be a likelihood of discovery leading to such evidence, and the party opposing the motion must allege the existence of proof in admissible form which presents a triable issue of fact or an acceptable excuse for the absence of first-hand knowledge.

Case: Desena v. City of New York, NY Slip Op 06160 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Trusts and Estates.

Practice point: Pursuant to Estates, Powers and Trusts Law 11-3.2(b), a personal representative of the decedent may bring an action for injury to decedent’s person or property.

Practitioners should note that 13-3.5(a)(1) provides that a foreign decedent’s representative bringing an action in New York must, within 10 days of commencing the action, file a copy of the representative’s letters, authenticated as required by CPLR 4542.

Case: Schoeps v. Andrew Lloyd Webber Art Foundation, NY Slip Op 06155 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: To survive a pre-answer motion to dismiss pursuant to CPLR 3211(a)(7), plaintiff must plead allegations from which damages attributable to defendant's conduct may reasonably be inferred.

Practitioners should note that, at this early stage of the proceeding, plaintiff is not obliged to show that damages actually were sustained.

Case: Fielding v. Kupferman, NY Slip Op 06151 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Trusts and Estates.

Comparative negligence.

Practice point: A person who accepts a ride in a vehicle, with knowledge that the operator may be intoxicated, takes a risk that injury might occur.

Practitioners should note that the risk will be considered in the analysis of comparative negligence as between the vehicle’s operator and the passenger.

Case: Strychalski v. Dailey, NY Slip Op 06134 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Arbitration.

Practice point: Arbitration is favored in New York State as a means of resolving disputes, and courts will interfere as little as possible with agreements to arbitrate.

Practitioners should note that a party will not be compelled to arbitrate absent evidence that the parties expressly agreed to arbitrate their disputes.

Case: Shah v. Monpat Constr., Inc., NY Slip Op 06132 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Comparative negligence.

Motion practice.

Practice point: A defendant seeking to vacate its default in appearing or answering must offer a reasonable excuse for the default and demonstrate a meritorious defense to the complaint.

Practitioners should note that an excuse that the insurer took more than one year in providing a defense is insufficient.

Case: Kramer v. Oil Services, Inc., NY Slip Op 06121 (2d Dept. 2009).

The opinion is here.

Tomorrow’s issue: Arbitration.

Notice of claim.

Practice point: Filing a police accident report with the New York City Department of Transportation does not constitute notice of claim to the City.

Practitioners should note that law office failure, standing alone, is insufficient to justify serving an unauthorized late notice of claim five months after the expiration of the 90-day statutory period of General Municipal Law § 50-e.

Case: Gobardhan v. City of New York, NY Slip Op 05961 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Contracts.

Practice point: If a contract is not signed by the party to be charged with its enforcement, it is void as against that party, pursuant to the statute of frauds.

Practitioners should note that to prove an enforceable oral contract under the doctrine of part performance, there must be an act that is unequivocally referable to the alleged contract.

Case: Singh v. Kur, NY Slip Op 05957 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Notice of claim.

Motion practice.

Practice point: In an action brought by an out-of-state resident, defendant may move for an order directing plaintiff to post security during the pendency of the action so that defendant, if successful, will be able to collect its costs, pursuant to CPLR 8501[a].

Practitioners should note that, in counties outside of the City of New York, the statutory amount is $250, pursuant to CPLR 8503.

Case: Halloway v. KRNH, Inc., NY Slip Op 06003 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Contracts.

Legal malpractice.

Practice point: To support the cause of action, the factual allegations must establish the necessary element of causation, namely, that "but for" the alleged acts or omissions, plaintiff would not have incurred any damages.

Practitioners should note that the mere failure to disclose malpractice does not give rise to a cause of action alleging fraud or deceit, apart from the underlying malpractice cause of action.

Case: Reichenbaum v. Cilmi, NY Slip Op 05954 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.