http://drdiekman.podbean.com Everyday New York Practice Points Tue, 24 Nov 2009 09:20:51 +0000 http://backend.userland.com/rss092 en Practice point: Where plaintiffs' injuries result from an allegedly dangerous condition on the property, and not the way the work was being performed, a property owner will be liable under a theory of common-law negligence, as codified by § 200. Practitioners should note that a general contractor may be held ... http://drdiekman.podbean.com/2009/11/24/labor-law/ Practice point: The showing of merit required on a motion to restore is less than that required to defend a motion for summary judgment. Practitioners should note that a finding of merit sufficient to vacate a plaintiff's default does not preclude a subsequent granting of summary judgment to defendants. Case: ... http://drdiekman.podbean.com/2009/11/23/motion-practice/ Practice point: When there are common questions of law or fact, a joint trial is warranted unless the opposing party demonstrates prejudice to a substantial right. Practitioners should note that prejudice can be mitigated by the trial court with the appropriate jury instructions. Case: Pierre-Louis v. DeLonghi Am., Inc., NY ... http://drdiekman.podbean.com/2009/11/20/trial-practice/ Practice point: A trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment. Practitioners should note that a court exceeds its powers if, sua sponte, it reconsiders summary judgment motions after the case is dismissed by judgment. Case: Merriwether v. Osborne, NY ... http://drdiekman.podbean.com/2009/11/19/motion-practice/ Practice point: The award of attorney's fee pursuant to Domestic Relations Law § 237[a] is within the sound discretion of the court, and the issue is controlled by the equities and circumstances of each particular case. Practitioners should note that the court is likely to consider the financial circumstances of ... http://drdiekman.podbean.com/2009/11/18/family-law/ Practice point: A court has the discretion to extend the time to serve a notice of claim, pursuant to General Municipal Law § 50-e[5]. Practitioners should note that the lack of a reasonable excuse will not bar the granting of leave where there is actual notice and an absence of ... http://drdiekman.podbean.com/2009/11/17/motion-practice/ Practice point: A clear and complete writing must be enforced according to its plain terms, without reference to parol or extrinsic evidence. Practitioners should note that the implied covenant of good faith and fair dealing inherent in every contract cannot be used to create terms that do not exist in ... http://drdiekman.podbean.com/2009/11/16/contracts/ Practice point: A defendant’s purported need to conduct discovery does not warrant denial of plaintiff’s summary judgment motion when defendant already has personal knowledge of the relevant facts. Practitioners should note that the mere hope or speculation that, during the discovery process, evidence sufficient to defeat the motion may be ... http://drdiekman.podbean.com/2009/11/13/motion-practice/ Practice point: A party must provide proper authorizations for the release of medical records when that party has waived the physician-patient privilege by putting his or her physical or mental condition in issue. Practitioners should note that a plaintiff puts his or her medical condition in issue by alleging physical ... http://drdiekman.podbean.com/2009/11/12/discovery/ Practice point: A ball park’s proprietor is not required to protect all spectators, but must provide screening for those seated behind home plate where there is the greatest danger of being struck by a ball. Practitioners should note that the screening must provide adequate protection for as many spectators as ... http://drdiekman.podbean.com/2009/11/11/torts/ Practice point: A motion to vacate a dismissal for failure to appear at a scheduled court conference must be made within one year of service of a copy of the dismissal order with notice of entry, and be supported by a showing of reasonable excuse for the failure to ... http://drdiekman.podbean.com/2009/11/10/motion-practice/ Practice point: A party that does not offer court-ordered disclosure is subject to preclusion of its evidence, pursuant to CPLR 3126. Practitioners should note that the sanction is within the broad discretion of the court, and likely will not be disturbed on appeal. Case: Emmitt v. City of New ... http://drdiekman.podbean.com/2009/11/09/motion-practice/ Practice point: If the language is ambiguous, its construction presents a question of fact that cannot be resolved on a motion for summary judgment. Practitioners should note that the rule that ambiguous language will be construed against the drafter does not apply when the agreement resulted from negotiations between commercially ... http://drdiekman.podbean.com/2009/11/06/contracts/ Practice point: Defendant’s motion to dismiss, pursuant to CPLR 3126, may be denied if plaintiff provides the requested disclosure while the motion is pending. Practitioners should note that the court's direction that defendant provide plaintiff with the identities of certain employees does not impinge on defendant’s right to select a ... http://drdiekman.podbean.com/2009/11/05/motion-practice/ Practice point: In a medical malpractice action, evidence of a defendant’s insurance is inadmissible. Practitioners should note that, where testimony concerning insurance comes out at trial, even if innocently by counsel, a postverdict motion for a mistrial may be granted, even where the offending testimony had been stricken from the ... http://drdiekman.podbean.com/2009/11/04/motion-practice/ Practice point: If plaintiff's prior medical condition might affect the amount of recoverable damages, the medical records are material and necessary to the defense, and a motion to compel their production will be granted. Practitioners should note that if plaintiff's certificate of readiness incorrectly stated that all pretrial discovery, including ... http://drdiekman.podbean.com/2009/11/03/motion-practice/ Practice point: A hospital cannot be held vicariously liable for the malpractice of a private attending physician who is not its employee. Practitioners should note that there is an exception to the rule where a patient comes to the emergency room seeking treatment from the hospital and not from a ... http://drdiekman.podbean.com/2009/11/02/torts/ Practice point: School officials must make a report when they have reasonable cause to suspect that a student is an abused or maltreated, pursuant to Social Services Law § 413[1] and 415. Practitioners should note that there is immunity from liability for making good faith child protective reports, pursuant to ... http://drdiekman.podbean.com/2009/10/30/school-law/ Practice point: Service of a notice of claim within 90 days after accrual is a condition precedent to commencing a tort action against a municipal defendant. Practitioners should note that late service may be allowed, but plaintiff must move for leave of the court within one year and 90 days ... http://drdiekman.podbean.com/2009/10/29/municipalities-law/ Practice point: An at-will employee has a cause of action alleging tortious interference with employment on a showing that the defendant utilized wrongful means to effect the employee’s termination. Practitioners should note that plaintiff must show: (1) the existence of a business relationship between the plaintiff and a third party; ... http://drdiekman.podbean.com/2009/10/28/employment-law/