Motion practice.

Practice point: An evidentiary ruling made before trial is generally reviewable only in connection with an appeal from the judgment after trial.

Practitioners should note that no discrete appeal lies from an order granting a motion to preclude proposed expert testimony.

Case: Santos v. Nicolas, NY Slip Op 06602 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Corporations.

Motion practice.

Practice point: A motion to dismiss a complaint based on documentary evidence will be granted only when the evidence utterly refutes plaintiff's factual allegations, and establishes a defense as a matter of law.

Practitioners should note that leave to amend the complaint will be given absent prejudice or surprise.

Case: Stein v. Garfield Regency Condominium, NY Slip Op 06531 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Res judicata.

Practice point: The doctrine precludes the relitigation of issues that could have or should have been raised in a prior proceeding stemming from the same factual grouping or transaction.

Practitioners should note that, where the same foundational facts serve as a predicate for two proceedings, differences in legal theory or relief sought do not create a separate cause of action.

Case: Greaves v. Ortiz, NY Slip Op 06508 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Remedies.

Practice point: A preliminary injunction is not available to preserve assets as security for a potential money judgment even if a party intends to frustrate a judgment by making it uncollectible.

Practitioners should note that a general creditor might seek an attachment if the debtor is looking to transfer assets.

Case: Fatima v. Twenty Seven-Twenty Four Realty Corp., NY Slip Op 06503 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Res judicata.

Torts.

Practice point: A possessor of real property has a duty to maintain reasonable security measures to protect those lawfully on the premises from the foreseeable criminal acts of third parties.

Practitioners should note that foreseeability requires that the criminal conduct must be reasonably predictable based on prior occurrences of a similar kind at a sufficiently proximate location.

Case: Bryan v. Crobar, NY Slip Op 06394 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Remedies.

Motion practice.

Practice point: An action may be dismissed for a delay in its prosecution, pursuant to CPLR 3216[a].

Practitioners should note that, for such a dismissal, there are three requirements: (1) issue must have been joined, (2) one year must have elapsed following joinder, and (3) there must have been a written demand served by registered or certified mail requiring that a note of issue be served and filed within ninety days, pursuant to CPLR 3216[b].

Case: Michaels v. Sunrise Bldg. & Remodeling, Inc., NY Slip Op 06411 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Torts.

The "danger invites rescue" doctrine.

Practice point: There is no cause of action in negligence against a rescuer who was rushing into danger to save someone from an imminent, life-threatening peril.

Practitioners should note that the doctrine works against a party whose culpable act has put someone in an imminent peril which invites a third person to come to the rescue.

Case: Flederbach v. Lennett, NY Slip Op 06402 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: New York does not recognize a cause of action in tort for wrongful termination.

Practitioners should note that, absent an express agreement establishing that it is for a fixed duration, the employment is presumed to be at-will and can be freely terminated by either party at any time, for any reason, or for no reason at all.

Case: Daub v. Future Tech Enter., Inc., NY Slip Op 06397 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: The “danger invites rescue” doctrine.

Vehicle and Traffic Law.

Practice point: To establish liability pursuant to § 388(1), a plaintiff must show negligence in the use or operation of the vehicle, and that the negligence was a cause of the injury.

Practitioners should note that if intentional offensive contact is established, the actor is liable for battery, not negligence.

Case: Ciminello v. Sullivan, NY Slip Op 06396 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Labor Law.

Practice point: For purposes of § 240(1) liability, an airplane is a structure.

Practitioners should note that the City may be liable as fee owner, even though it leased the premises to the Port Authority, which in turn leased the premises to an airline.

Case: Wong v. City of New York, NY Slip Op 06395 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Vehicle and Traffic Law.

Torts.

Practice point: An arm's length borrower-lender relationship is not confidential or fiduciary in nature, and does not support a cause of action for negligent misrepresentation.

Practitioners should note that liability for negligent misrepresentation will be imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party.

Case: Dobroshi v. Bank of Am., N.A., NY Slip Op 06382 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.