Contracts.

Practice point: If the language is ambiguous, its construction presents a question of fact that cannot be resolved on a motion for summary judgment.

Practitioners should note that the rule that ambiguous language will be construed against the drafter does not apply when the agreement resulted from negotiations between commercially sophisticated entities.

Case: Shadlich v. Rongrant Assoc., LLC, NY Slip Op 07394 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Motion practice.

Motion practice.

Practice point: Defendant’s motion to dismiss, pursuant to CPLR 3126, may be denied if plaintiff provides the requested disclosure while the motion is pending.

Practitioners should note that the court's direction that defendant provide plaintiff with the identities of certain employees does not impinge on defendant’s right to select a witness to produce for deposition.

Case: Lopes v. Metropolitan Tr. Auth., NY Slip Op 07379 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Motion practice.

Practice point: In a medical malpractice action, evidence of a defendant’s insurance is inadmissible.

Practitioners should note that, where testimony concerning insurance comes out at trial, even if innocently by counsel, a postverdict motion for a mistrial may be granted, even where the offending testimony had been stricken from the record.

Case: Grogan v. Nizam, NY Slip Op 07375 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: If plaintiff's prior medical condition might affect the amount of recoverable damages, the medical records are material and necessary to the defense, and a motion to compel their production will be granted.

Practitioners should note that if plaintiff's certificate of readiness incorrectly stated that all pretrial discovery, including physical examinations, had been completed, this is a misstatement of a material fact and the motion to vacate the note of issue and certificate of readiness will be granted.

Case: Amoroso v. City of New York, NY Slip Op 07212 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: A hospital cannot be held vicariously liable for the malpractice of a private attending physician who is not its employee.

Practitioners should note that there is an exception to the rule where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing.

Case: Schultz v. Shreedhar, NY Slip Op 07244 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

School Law.

Practice point: School officials must make a report when they have reasonable cause to suspect that a student is abused or maltreated, pursuant to Social Services Law § 413[1] and 415.

Practitioners should note that there is immunity from liability for making good faith child protective reports, pursuant to § 419.

Case: Biondo v. Ossining Union Free School Dist., NY Slip Op 07368 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Torts.

Municipalities Law.

Practice point: Service of a notice of claim within 90 days after accrual is a condition precedent to commencing a tort action against a municipal defendant.

Practitioners should note that late service may be allowed, but plaintiff must move for leave of the court within one year and 90 days of the accrual date, pursuant to General Municipal Law § 50-e(5).

Case: McShane v. Town of Hempstead, NY 07235 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: School Law.

Employment Law.

Practice point: An at-will employee has a cause of action alleging tortious interference with employment on a showing that the defendant utilized wrongful means to effect the employee’s termination.

Practitioners should note that plaintiff must show: (1) the existence of a business relationship between the plaintiff and a third party; (2) defendant’s interference with that business relationship; (3) that the defendants acted with the sole purpose of harming plaintiff or used dishonest, unfair, improper or illegal means that amounted to a crime or an independent tort; and (4) that such acts resulted in the injury to plaintiff's relationship with the third party.

Case: McHenry v. Lawrence, NY Slip Op 07234 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Motion practice.

Practice point: A complaint may not be dismissed for failure to prosecute when plaintiff has shown a justifiable excuse for the delay and a meritorious cause of action, pursuant to CPLR 3216[e].

Practitioners should note that plaintiff may avoid dismissal even absent this dual showing.

Case: Ferrera v. Esposit, NY Slip Op 07224 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: To establish entitlement to a preliminary injunction, a movant must establish (1) the likelihood of success on the merits, (2) irreparable harm absent an injunction, and (3) a balance of the equities in favor of granting the injunction.

Practitioners should note that “irreparable injury” has been held to mean any injury for which money damages are insufficient.

Case: Di Fabio v. Omnipoint Communications, Inc., NY Slip Op 07223 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

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.