Motion practice.

Practice point: Where there is an inconsistency between an order and the decision on which it is based, the decision controls.

Practitioners should note that the order is not rendered a nullity by this inconsistency unless it affects a substantial right of a party, pursuant to CPLR 5019[a].

Case: Matter of Stewart, NY Slip Op 06254 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Motion practice.

Practice point: On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, give plaintiff the benefit of every possible favorable inference, and determine only whether the allegations fit within any cognizable legal theory.

Practitioners should note that while affidavits may be considered, if the motion has not been converted to a CPLR 3212 motion for summary judgment, affidavits are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims.

Case: Mathurin v. Lost & Found Recovery, LLC, NY Slip Op 06240 (2d Dept. 2009)

The opinion is here.

Tuesday’s issue: Motion practice.

Torts.

Practice point: To demonstrate a lack of informed consent, a plaintiff must establish (1) that defendant failed to disclose the material risks, benefits and alternatives to the surgery which a reasonable medical practitioner would have disclosed, and (2) that a reasonably prudent person in plaintiff's position would not have undergone the surgery if he or she had been fully informed, pursuant to Public Health Law § 2805-d[1], [3].

Practitioners should note that informed consent does not require disclosure of the qualifications of personnel providing the professional treatment, pursuant to Public Health Law § 2805-d.

Case: Johnson v. Jacobwitz, NY Slip Op 06236 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Property.

Practice point: Partition is an equitable remedy and Supreme Court has the authority to adjust the parties’ rights so that each receives the proper share of the property and its benefits.

Practitioners should note that a tenant’s expenditures in excess
of tenant’s obligations may be charged against the cotenant’s interest. These expenditures include down payments and mortgage payments.

Case: Brady v. Varrone, NY Slip Op 06228 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Municipalities Law.

Practice point: As a general rule, a municipal defendant is immune from liability for conduct involving the exercise of discretion and reasoned judgment.

Practitioners should note that the judgment error rule does not immunize municipal defendants when an innocent bystander is injured by a police officer’s action in an altercation involving a violation of department guidelines governing the use of deadly force.

Case: Johnson v. City of New York, NY Slip Op 06225 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Property.

Labor Law.

Practice point: For summary judgment in a § 240(1) action, a plaintiff must establish that there was a violation of the statute, and that the violation was the proximate cause of the injuries.

Practitioners should note that there is no liability if adequate safety devices are provided and the worker either chooses not to use them or misuses them.

Case: Cherry v. Time Warner, Inc., NY Slip Op 06226 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Municipalities Law.

Practice point: Generally, a plaintiff who has failed to comply with a demand for a hearing pursuant to General Municipal Law 50-h(2) is precluded from commencing an action against a municipality.

Practitioners should note that the complaint should not be dismissed where the hearing has been postponed indefinitely beyond the statutory 90-day period, and the municipality has not rescheduled the hearing.

Case: Vargas v. City of Yonkers, NY Slip Op 06176 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

Trusts and Estates.

Practice point: To make a valid inter vivos gift, there must be
the intent to transfer; there must be delivery, either actual or constructive; and there must be acceptance by the donee.

Practitioners should note that the law will presume an acceptance when the gift is of value.

Case: Shybunko v. Geodesic Homes, Inc., NY Slip Op 06174 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

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.