General Municipal Law § 50-e.

Practice point:  Where malpractice is apparent from an independent review of the medical records, those records constitute actual notice of the pertinent facts of the claim.

Student note:  Pursuant to the statute, a party seeking to sue a public corporation must serve a notice of claim on the prospective defendant within ninety days after the claim arises.

Ballantine v. Pine Plains Hose Co., Inc., NY Slip Op 07697 (2d Dep't November 14, 2018)

Here is the decision.

Court holiday.

Preemptions by federal law.

Practice point:  Federal law preempts State claims that require the interpretation of a collective bargaining agreement.

Student note:  When the Appellate Division affirms on preemption grounds, it need not reach any of the other issues raised in the parties' briefs.

Matter of McLane v. AT&T, Inc., NY Slip Op 07686 (1st Dep't November 13, 2018)

Here is the decision.

Insufficient allegations of fraud.

Practice point:  Allegations pled on information and belief are not sufficient to establish the necessary quantum of proof to sustain a claim of fraud.

Weinberg v. Kaminsky, NY Slip Op 07652 (1st Dep't November 13, 2018)

Here is the decision.

Vacating an arbitral award.

Practice point:  The arbitrator's errors of fact or law are insufficient to vacate the award.

Student note:  CPLR 7511 provides four grounds for vacating an award, one of which is the exceeding of the arbitrator's power. This requires a showing that the award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

Matter of NRT N.Y. LLC v. Spell, NY Slip Op 07664 (1st Dep't November 13, 2018)

Here is the decision.

Disclosure of mental health records.

Practice point:  Plaintiff put his mental condition at issue by seeking to recover damages for emotional distress. Pursuant to CPLR 3101(a), he must provide defendants with an unlimited authorization for all mental health records for treatment in connection with the injuries he alleges in the complaint.

Rosen v. MHM Realty LLC, NY Slip Op 07549 (1st Dep't November 8, 2018)

Here is the decision.

Discovery and the timing of a summary judgment motion.

Practice point:  There should be a reasonable opportunity to conduct discovery prior to the determination of a summary judgment motion, pursuant to CPLR 3212(f), where further discovery might lead to relevant evidence.

Haxhijaj v. Ferrer, NY Slip Op 07416 (2d Dep't November 7, 2018)

Here is the decision.

An affirmative defense of improper service.

Practice point:  After serving an answer asserting the affirmative defense, a defendant must move for judgment within 60 days, pursuant to CPLR 3211(e).

Student note:  Service of an amended answer does not reset the 60-day period.

Bulkan v. Stepp's Towing Serv., Inc., NY Slip Op 07406 (2d Dep't November 7, 2018)

Here is the decision.

An unenforceable fees provision.

Practice point:  A contractual provision which provides that the tenant must pay attorneys' fees if it commences an action against the landlord based on the landlord's default is unconscionable and unenforceable as a penalty.

Student note:  Parties to a lease may contract for reasonable attorneys' fees provided that they are not in the nature of penalty or forfeiture. Whether a fees provision is an unenforceable penalty is a question of law. A finding of unconscionability requires a showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.

Matter of Krodel v. Amalgamated Dwellings Inc., NY Slip Op 07531 (1st Dep't November 8, 2018)

Here is the decision.

MACV.

                      

Normandy.