A dismissed contracts claim.

A plaintiff cannot base its claim on the non-performance of a condition precedent where the plaintiff itself made performance impossible.

Jeffers v. American Univ. of Antigua, NY Slip Op 00987(1st Dep't February 7, 2019)

Here is the decision.

An employment discrimination claim.

Mere disparate treatment, standing alone and without a showing that the disparity was based on a protected characteristic, does not amount to discrimination.

Abe v. New York Univ., NY Slip Op 00989 (1st Dep't February 7, 2019)

Here is the decision.

Restrictive covenants in employment agreements.

Practice point:  Where the agreement is between professionals, the restraint as to unfair competition is enforceable only if the former employee uses the employer's confidential business information, or if the former employee's services are extraordinary or unique.

Student note:  A restrictive covenant in an employment agreement is reasonable only if it is no greater than is required for the protection of the employer's legitimate interests; it does not impose an undue hardship on the employee; and it is not injurious to the public.

Harris v. Patients Med., P.C., NY Slip Op 00974 (1st Dep't February 7, 2019)

Here is the decision.

Court holiday.

Summary judgment in a medical malpractice action.

The injury itself cannot be the only basis for the finding of a departure from the accepted standard of medical practice.

Henry v. Duncan, NY Slip Op 00960 (1st Dep't February 7, 2019)

Here is the decision.

Contradictory testimony.

Generally, contradictions in the respective parties' testimony raise credibility issues for the trier of fact to resolve. However, where a party's deposition testimony is demonstrably false, it may be rejected as incredible as a matter of law.

Carthen v. Sherman, NY Slip Op 00954 (1st Dep't February 7, 2019)

Here is the decision.

Medical experts.

An expert does not have to be a specialist in order to testify regarding accepted practices in a particular field of medicine. However, where the testimony is outside the witness's area of specialization, a foundation must be laid to support the opinion's reliability.

Simpson v. Edghill, NY Slip Op 00923 (2d Dep't February 6, 2019)

Here is the decision.

Spoliation of evidence.

Sanctions may be imposed on a showing that the party in control of the evidence had an obligation to preserve it; that the evidence was destroyed with a culpable state of mind; and that the destroyed evidence was relevant to the extent that a trier of fact could find that the evidence would support the other party's claim or defense.

Sarris v. Fairway Group Plainview, LLC, NY Slip Op 00922 (2d Dep't February 6, 2019)

Here is the decision.

CPLR 3212(f).

Summary judgment will not be denied as premature where the affirmative defenses are precluded.

Bernstein v. Dubrovsky, NY Slip Op 00835 (1st Dep't February 5, 2019)

Here is the decision.

CPLR 217(1).

The four-month limitations period for article 78 claims applies to a plenary action to review the Police Pension Fund's administrative determination of an officer's vesting date.

Toolasprashad v City of New York, NY Slip Op 00825 (1st Dep't February 5, 2019)

Here is the decision.

CPLR 3018(b).

Practice point:  The defense of lack of standing in an action to foreclose a mortgage is waived if the defendant does not raise it in a pre-answer motion to dismiss or as an affirmative defense.

BAC Home Loans Servicing, LP v. Alvarado, NY Slip Op 00584 (2d Dep't January 30, 2019)

Here is the decision.