Motion practice.

Practice point: Where evidentiary material is submitted and considered on a motion to dismiss, pursuant to CPLR 3211(a)(7), the court must determine whether plaintiff has a cause of action, not whether plaintiff has stated one.

Practitioners should note that the motion should be denied unless it has been shown that a material fact as claimed by plaintiff is not a fact at all, and unless it can be said that there is no significant dispute regarding it.

Case: Shapiro v. Jackel, NY Slip Op 06171 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Trusts and Estates.

Attorney-client relationships.

Practice point: A lawyer may withdraw from representation if the client's conduct makes it unreasonably difficult for the lawyer to be effective, pursuant to Code of Professional Responsibility DR 2-110[c][1][iv]; 22 NYCRR 1200.15(c)(1)(iv).

Practitioners should note that a lawyer may withdraw if the client deliberately disregards an agreement or obligation as to expenses or fees, pursuant to Code of Professional Responsibility DR 2-110[C][1][f]; 22 NYCRR 1200.15(c)(1)(vi).

Case: Misek-Falkoff v. Metropolitan Tr. Auth., NY Slip Op 06168 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Evidence.

Practice point: The Frye rule is that expert testimony based on a scientific principle or procedure is admissible if the principle or procedure has gained general acceptance in its specific field.

Practitioners should note Frye is not concerned with the reliability of an expert's conclusions, but only with whether the expert's deductions are based on principles or procedures that are sufficiently established to have gained general acceptance as reliable.

Case: Lipschitz v. Stein, NY Slip Op 06167 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Attorney-client relationships.

Appellate practice.

Practice point: It is appellant’s responsibility to assemble the necessary and proper record.

Practitioners should note that the record must contain all relevant papers that were before the Supreme Court.

Case: Keita v. United Parcel Service, NY Slip Op 06165 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Evidence

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.