Motion practice.

Practice point: On a summary judgment motion in a malpractice action, defendant has the initial burden of establishing, prima facie, either the absence of a departure from good and accepted medical practice, or that such a departure was not the proximate cause of the alleged injury.

Students should note that, in opposition, plaintiff must submit evidence to rebut the prima facie showing, demonstrating a triable issue of fact.

Case: Brady v. Westchester County Healthcare Corp., NY Slip Op 08886 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: An application to be relieved from a default judgment, pursuant to CPLR 5015, requires a showing of a reasonable excuse and a meritorious defense.

Students should note that where a court finds that a defendant failed to personally receive notice of the summons in time to defend and has a meritorious defense, relief from a default may be permitted, pursuant to CPLR 317.

Case: Sanchez v. Avuben Realty LLC, NY Slip Op 08780 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: The allegation that a defendant entered into a contract with the intent not to perform will not support a cause of action sounding in fraud.

Students should note that a cause of action sounding in fraud is not duplicative of one to recover damages for a breach where plaintiff sues non-parties, and seeks compensatory damages which are otherwise not recoverable.

Case: Introna v. Huntington Learning Ctrs., Inc., NY Slip Op 08533 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Contracts.

Practice point: A contract is ambiguous if it reasonably admits more than one interpretation, and extrinsic evidence is admissible to determine the parties' intent.

Students should note that if parol evidence is necessary to interpret the contract, summary judgment is not warranted.

Case: Foot Locker, Inc. v. Omni Funding Corp. of Am., NY Slip 08431 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Torts.

Corporations.

Practice point: A general partner’s fiduciary duty to limited partners continues until the closing of a buy-out transaction.

Students should note that, generally if a fiduciary sells property for an inadequate price the measure of damages is the difference between what was received and what should have been received. However, there is an appreciation of damages if the fiduciary engaged in self-dealing.

Case: Frame v. Maynard, NY Slip Op 08430 (1st Dept. 2010)

Here is the decision.

Monday’s issue: Contracts.

Real Estate Law.

Practice point: There is a presumption that a tenant in common in possession holds the property for the benefit of the cotenant, pursuant to Real Property Actions and Proceedings Law § 541.

Students should note that the presumption ceases only after 10 years exclusive occupancy or upon ouster.

Case: Bank of Am., N.A. v. 414 Midland Ave. Assoc., LLC, NY Slip Op 08053 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Corporations.

Motion practice.

Practice point: Leave to conform a pleading to the proof, pursuant to CPLR 3025(c), will be freely granted.

Students should note that lateness, absent prejudice, is not a barrier to the amendment.

Case: Worthen-Caldwell v. Special Touch Home Care Servs., Inc., NY Slip Op 08096 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Real Estate Law.

Motion practice.

Practice point: Generally, a declaratory judgment action is governed by the six-year catch-all statute of limitations of CPLR 213(1).

Students should note that if the action could have been brought in a different form, asserting a particular cause of action, the limitations period applicable to that cause of action will apply.

Case: Walter v. Starbird-Veltidi, NY Slip Op 08095 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: Evidentiary rulings are not appealable, either as of right or by permission, pursuant to CPLR 5701.

Students should note that a motion to set aside a jury verdict, pursuant to CPLR 4404, requires a showing that no line of reasoning and permissible inference would lead a rational person to the jury’s finding.

Case: Rosenfeld v. Baker, NY Slip Op 08087 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

Torts.

Practice point: A cause of action sounding in fraudulent representation requires a showing that defendant spoke a falsehood intending to deprive plaintiff of a benefit, and that plaintiff was thereby damaged.

Students should note that the heightened pleading standard of CPLR 3016(b) requires only that the allegation be set forth so that defendant is informed of the incident complained of.

Case: RBE Northern Funding, Inc. v. Stone Mountain Holdings, LLC, NY Slip Op 08086 (2d Dept. 2010)

Here is the decision.

Monday’s issue: Motion practice.

Court holiday.

The courts are closed today, and so there is no post.

Happy Thanksgiving, and thank you for your support throughout the year.

Tomorrow’s issue: Torts.