Motion practice.

Practice point: The factor of infancy, standing alone, does not compel the granting of a motion for leave to serve a late notice of claim.

Practitioners should note that merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not establish that the medical staff, by its acts or omissions, inflicted an injury on the plaintiff.

Case: Contreras v. KBM Realty Corp., NY Slip 07220 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Foreclosures Law.

Practice point: A referee cannot alter the terms of a judgment of foreclosure, and unauthorized variations between the terms of sale and the judgment are void.

Practitioners should note that, as a matter of equity, a court has the discretion to set aside a foreclosure sale if there is evidence of fraud, collusion, mistake, or misconduct.

Case: Cicorelli v. Hickey's Carting, Inc., NY Slip Op 07219 (2d Dept. 2009)

The opinion is here.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A verdict may not be set aside as being against the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence.

Practitioners should note that the issue of an expert witness’s credibility is considered up to the jury.

Case: Abdelkader v. Shahine, NY Slip Op 07210 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Foreclosures Law.

Employment Law.

Practice point: By including vulgar language on a patient’s discharge form, which the patient, without having read it, gave to her employer, a doctor is acting outside the scope of his employment, and the hospital cannot be held liable under a theory of respondeat superior.

Practitioners should note that the conduct challenged here, while offensive and bizarre, does not meet the requirement of outrageous conduct so as to be actionable as intentional infliction of emotional distress.

Case: Suarez v. Bakalchuk, NY Slip Op 07150 (1st Dept.)

The opinion is here.

Tomorrow’s issue: Motion practice.

Trusts and Estates.

Practice point: A valid inter vivos gift requires that the donor intend to make an irrevocable present transfer of ownership.

Practitioners should note that there must be either physical, constructive or symbolic delivery to the donee sufficient to divest the donor of dominion and control over the property, and acceptance by the donee.

Case: Matter of Baum, NY Slip Op 06782 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Vehicle and Traffic Law.

Practice point: Merely speeding down the street, even alongside another vehicle, does not constitute a “speed contest,” within the meaning of § 1182(1).

Practitioners should note that a statutory violation requires that some kind of race course must have been planned by the drivers. It is not enough that two automobiles left an intersection when the traffic light turned green and, thereafter, travelled side-by-side at 55 miles an hour, with each car jockeying for position.

Case: MIC Prop. & Cas. Corp. v. Avila, NY Slip Op 06813 (2d Dept. 2009)

The opinion is here.

Monday’s issue : Trusts and Estates.

Labor Law.

Practice point: § 741(2)(a) prohibits retaliatory action against covered employees who disclose or threaten to disclose a hospital’s policy or practice that the employee, in good faith, reasonably believes constitutes an improper quality of patient care.

Practitioners should note that “improper quality of care” means any procedure, action or failure to act which violates a law or rule, where the violation may present a danger to the public health or to the health of a specific patient, pursuant to § 741[1][d]).

Case: Luiso v. Northern Westchester Hosp. Ctr., NY Slip Op 06810 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Vehicle and Traffic Law.

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.