Torts.

Practice point: A claim against a municipal employee who was acting within the scope of his employment will be dismissed if the notice of claim is not timely served, pursuant to General Municipal Law § 50-i.

Students should note that defendant is not obliged to advise plaintiff of the untimely service, or to plead it as an affirmative defense.

Case: Dorce v. United Rentals N. Am., Inc., NY Slip Op 08894 (2d Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Leave to amend a complaint will be freely granted if the proposed amendment will not prejudice or surprise the defendant, is not patently devoid of merit, and is not plainly insufficient, pursuant to CPLR 3025[b].

Students should note that punitive damages are recoverable in a medical malpractice action only where defendant's conduct evinces a high degree of moral culpability or willful or wanton negligence or recklessness.

Case: Dmytryszyn v. Herschman, NY Slip Op 08893 (2d Dept. 2010)

Here is the decision.

Monday's issue: Torts.

Motion practice.

Practice point: Leave to amend a complaint will be freely granted if the proposed amendment will not prejudice or surprise the defendant, is not patently devoid of merit, and is not plainly insufficient, pursuant to CPLR 3025[b].

Students should note that punitive damages are recoverable in a medical malpractice action only where defendant's conduct evinces a high degree of moral culpability or willful or wanton negligence or recklessness.

Case: Dmytryszyn v. Herschman, NY Slip Op 08893 (2d Dept. 2010)

Here is the decision.

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.