Motion practice.

Practice point: An unsworn accident report is not evidence in admissible form sufficient to defeat a summary judgment motion.

Students should note that the report may be admissible as a business record, pursuant to CPLR 4518(a), if it (1) was required as a condition of employment, (2) was made at or about the time of the accident, and (3) was maintained in the regular course of business.

Case: Harrison v. Bailey, NY Slip Op 09221 (2d Dept. 2010)

Here is the decision.

Tomorrow’s issue: Corporations.

Employment Law.

Practice point: A petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination, pursuant to CPLR 217[1].

Students should note that the time to commence such a proceeding is not extended by the petitioner's pursuit of administrative remedies.

Case: Kahn v. New York City Dept. of Educ., NY Slip Op 09168 (1st Dept. 2010)

Here is the decision.

Tomorrow's issue: Motion pratice.

Corporations.

Practice point: Members of an organization entering into a contract with the organization may be bound by duly enacted organizational by-laws compelling arbitration.

Students should note that a party will not be compelled to arbitrate absent a clear, explicit, and unequivocal agreement to do so.

Case: Dean v Harvestime Tabernacle United Pentecostal Church Intl., NY Slip Op 09211 (2d Dept. 2010)

Here is the decision.

Monday's issue: Employment Law.

Torts.

Practice point: Plaintiff’s subjective claim of continuing pain and the inability to work for more than 90 days is not dispositive in claiming a 90/180 category serious injury.

Students should note that even where there is objective proof, the claim may fail if there is a preexisting condition.

Case: Rosa-Diaz v. Maria Auto Corp., NY Slip Op 08995 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Corporations

Motion practice.

Practice point: A court has the inherent power, sua sponte or on motion, to reconsider and vacate its prior decision before issuing an order thereon.

Students should note that the claim-splitting doctrine does not preclude a tenant from seeking damages in an action separate from that in which he had sought to be restored to possession.

Case: Rostant v. Swersky, NY Slip Op 08987 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Torts.

Motion practice.

Practice point: A defendant must plead the affirmative defense of statute of frauds in order to rely on statutory provisions requiring an agreement to be reduced to a writing (General Obligations Law §§ 5-701, 5-1103, 5-1105).

Students should note that defendant's trial motion to amend the pleadings to assert these provisions will be denied if the motion was interposed after the close of plaintiff's evidence .

Case: Ryan v. Kellogg Partners Institutional Servs., NY Slip Op 08983 (1st Dept. 2010)

Here is the decision.

Tomorrow’s issue: Motion practice.

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.