Contracts.

Practice point: A clear and complete writing must be enforced according to its plain terms, without reference to parol or extrinsic evidence.

Practitioners should note that the implied covenant of good faith and fair dealing inherent in every contract cannot be used to create terms that do not exist in the writing.

Case: Vanlex Stores, Inc. v. BFP 300 Madison II LLC, NY Slip Op 07677 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A defendant’s purported need to conduct discovery does not warrant denial of plaintiff’s summary judgment motion when defendant already has personal knowledge of the relevant facts.

Practitioners should note that the mere hope or speculation that, during the discovery process, evidence sufficient to defeat the motion may be uncovered is insufficient to deny the motion.

Case: Corwin v. Heart Share Human Servs. of N.Y., NY Slip Op 07575 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Contracts.

Discovery.

Practice point: A party must provide proper authorizations for the release of medical records when that party has waived the physician-patient privilege by putting his or her physical or mental condition in issue.

Practitioners should note that a plaintiff puts his or her medical condition in issue by alleging physical injury or mental anguish in the bill of particulars.

Case: Abdalla v. Mazl Taxi, Inc., NY Slip Op 07566 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: A ball park’s proprietor is not required to protect all spectators, but must provide screening for those seated behind home plate where there is the greatest danger of being struck by a ball.

Practitioners should note that the screening must provide adequate protection for as many spectators as may reasonably be expected to be in that location during a typical game.

Case: Correa v. City of New York, NY Slip Op 07512 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Discovery.

Motion practice.

Practice point: A motion to vacate a dismissal for failure to appear at a scheduled court conference must be made within one year of service of a copy of the dismissal order with notice of entry, and be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action, pursuant to CPLR 5015.

Practitioners should note that where the dismissal order has never been served with notice of entry, there is no time limit on making a motion to vacate the dismissal.

Case: Donnelly v. Treeline Cos., NY Slip Op 07504 (1st Dept 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: A party that does not offer court-ordered disclosure is subject to preclusion of its evidence, pursuant to CPLR 3126.

Practitioners should note that the sanction is within the broad discretion of the court, and likely will not be disturbed on appeal.

Case: Emmitt v. City of New York, NY Slip Op 07331 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A party that does not offer court-ordered disclosure is subject to preclusion of its evidence, pursuant to CPLR 3126.

Practitioners should note that the sanction is within the broad discretion of the court, and likely will not be disturbed on appeal.

Case: Emmitt v. City of New York, NY Slip Op 07331 (1st Dept. 2009)



Tomorrow’s issue: Motion practice.

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.