Law of the case.

Practice point: The doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision.

Practitioners should note that the doctrine is not binding on an appellate court.

Case: Lehman v. North Greenwich Landscaping, LLC, NY Slip Op 06808 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Labor Law.

Legal malpractice.

Practice point: The action must be commenced within three years of accrual, pursuant to CPLR 214[6] and 203[a], and accrual occurs when the malpractice is committed.

Practitioners should note that, under the doctrine of continuous representation, the statute of limitations is tolled while there is ongoing representation on the same matter in which the malpractice is alleged.

Case: Waggoner v. Caruso, NY Slip Op 06739 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Law of the case.

Torts.

Practice point: Governmental immunity does not insulate a defendant from liability for its employee’s negligence in carrying an ill person down a stairway, as such an act is plainly ministerial in nature, rather than discretionary or quasi-judicial.

Practitioners should note that if an EMS worker undertakes the affirmative action to treat the patient, the treatment must be done with due care.

Case: Velazquez v. New York City Health & Hosp. Corp., NY Slip Op 06735 (1st Dept. 2009)

The opinion is here.

Tuesday’s issue: Legal malpractice.

Employment Law.

Practice point: In claiming racial discrimination, there must be a prima facie showing that plaintiff is a member of a protected class; was qualified for the position and was terminated or suffered some other adverse employment action; and that the termination or adverse action took place under circumstances giving rise to an inference of discrimination. The burden then shifts to the employer to set forth legitimate and nondiscriminatory reasons to support its employment decision. The burden shifts again and plaintiff must prove that the reasons offered by the defendant were merely a pretext for the discrimination.

Practitioners should note that after-acquired evidence is not a bar to litigation and does not warrant summary judgment, but only affects the plaintiff's damages if and when the employer is found liable.

Case: Baldwin v. Cablevision Sys. Corp., NY Slip Op 06718 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: A plaintiff demonstrates entitlement to a default judgment by submitting proof of service; proof of the facts constituting its claim; and proof of defendant's default in answering or appearing, pursuant CPLR 3215[f].

Practitioners should note that, to avoid the entry of a default judgment, defendant must demonstrate a reasonable excuse for default and a meritorious defense to the action, pursuant to CPLR 5015[a][1].

Case: Mercury Cas. Co. v. Surgical Ctr. at Milburn, LLC, NY Slip Op 06516 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Municipalities Law.

Practice point: The City cannot be held vicariously liable for the negligence or intentional acts of the New York City Board of Education, since it is a separate and distinct entity.

Practitioners should note that, on a motion to dismiss, the court's only function is to determine whether the alleged facts fit within any cognizable legal theory.

Case: McClain v. City of New York, NY Slip Op 06409 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Corporations.

Practice point: A business may incorporate for the express purpose of escaping personal liability, but equity will pierce the corporate veil and permit the imposition of personal liability in order to avoid fraud or injustice.

Practitioners should note that a party seeking to pierce the corporate veil must show that the corporation’s owner exercised complete domination over it in the transaction at issue, and that this domination was used to commit a fraud or wrong.

Case: Shkolnik v. Krutoy, NY Slip Op 06677 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

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.