Friday, April 25, 2014

Hit while crossing within the crosswalk.

Practice point:  Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability by submitting an affidavit stating that defendants' yellow cab struck him as he was crossing within a crosswalk, with the pedestrian light in his favor, and after he had looked for oncoming traffic. In opposing, defendants failed to raise a triable issue of fact. Defendant-driver himself admitted in his affidavit that both he and plaintiff spoke with the police officer, and his statement to the officer is admissible as an admission against interest.

Student note: The court determined that defendant-driver's affidavit containing a different version of the facts seems to have been submitted to avoid the consequences of his prior admission to the police officer, and so it iis insufficient to defeat plaintiff's motion.

Case: Garzon-Victoria v. Okolo, NY Slip Op 02667 (1st Dept. 2014)

Here is the decision.

Monday's issue: Statue of limitations in a toxic exposure action.

Thursday, April 24, 2014

An owner's duty and slippery floors.

Practice point:  A property owner's duty to maintain the premises so that they are reasonably safe extends to any hazardous condition about which the owner has actual or constructive notice. Except where the landowner created the defective condition, thereby affording actual notice, it is the responsibility of the injured party to establish that the condition was either known to the owner or had existed for a sufficient period of time to have allowed the owner to discover and correct it.

Student note:  Proof that a floor is inherently slippery, standing alone, is insufficient to support a cause of action for negligence.

Case: Caicedo v. Sanchez, NY Slip Op 02663 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Hit while crossing within the crosswalk.

Wednesday, April 23, 2014

Causes of action for quantum meruit and unjust enrichment.

Practice point:  Under the doctrine of quantum meruit, the performance and acceptance of services gives rise to the inference of an implied contract to pay for the reasonable value of such services.

 A person may be unjustly enriched not only where he or she receives money or property, but also where he or she otherwise receives a benefit. Such a benefit may be conferred where the person's debt is satisfied or where she is otherwise saved expense or loss.

Student note: To state a cause of action for quantum meruit, plaintiff must allege (l) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services. 

To state a cause of action for unjust enrichment, a plaintiff must demonstrate that (1) defendant was enriched, (2) at plaintiff's expense, and (3) that it is against equity and good conscience to permit defendant to retain that which is sought to be recovered.

Case:  Farina v. Bastianich, NY Slip Op02661 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: An owner's duty and slippery floors.

Tuesday, April 22, 2014

A summary judgment motion in a medical malpractice motion.

Practice point:  On the motion, the defendant-physician must make a prima facie showing that there was no departure from good and accepted medical practice, or that the plaintiff was not injured thereby.  On such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut, but only as to those elements on which the defendant met its burden..

Here, the Appellate Division found that the Supreme Court correctly concluded, the defendants had made the requisite showing, shifting the burden to the plaintiff, who relied on the affirmations of two physicians, one board-certified in internal medicine and nephrology, and the other board-certified in diagnostic, interventional, and vascular radiology. The Appellate Division  agreed with the Supreme Court's determination that these affirmations consisted of conclusory and unsupported allegations, that they failed to address the salient issues concerning the defendants' alleged departures from accepted medical practice, and that they failed to respond to relevant issues raised by the defendants' experts. While one of the plaintiff's experts concluded that certain of the decedent's symptoms were consistent with nephrotoxicity resulting from the use of intravenous contrast in the procedures, both affirmations were speculative in concluding that the decedent's condition was caused by the defendants' actions in performing the second angiogram. Moreover, the plaintiff's experts failed to differentiate between and among the acts and omissions of the various defendants. Accordingly, these affirmations were insufficient to raise a triable issue of fact.

Student note: Because the cause of action to recover damages for wrongful death and the derivative cause of action were both premised on the defendants' alleged malpractice, the same conclusion applies to these causes of action.

Case:  Ahmed v. Pannone, NY Slip Op 02552 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Causes of action for quantum meruit and unjust enrichment.

Monday, April 21, 2014

Transfer of assets and Medicaid ineligibility.

Practice point:  An individual will not be ineligible for Medicaid as a result of a transfer of assets if it is determined that the denial of eligibility will result in an undue hardship. An undue hardship occurs where the institutionalized individual is otherwise eligible for Medicaid, is unable to obtain appropriate medical care without the provision of Medicaid, and is unable to have the transferred assets returned, pursuant to18 NYCRR 360-4.4.

Student note:  In reviewing a Medicaid eligibility determination made after a fair hearing, the court must review the record, as a whole, to determine if the agency's decisions are supported by substantial evidence and are not affected by an error of law. "Substantial evidence" is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.

Case: Matter of Tarrytown Hall Care Ctr. v. McGuire, NY Slip Op 02600 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A summary judgment motion in a medical malpractice action.

Friday, April 18, 2014

Legal malpractice claims and settlements.

Practice point:  A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel.  However, a plaintiff's conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a claim.

Student note:  To recover damages in a legal malpractice action, a plaintiff must establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages.  As to causation, a plaintiff must show that, but for the attorney's negligence, he or she would have prevailed in the underlying action or would not have incurred any damages.

Case:  Benishai v. Epstein, NY Slip Op 02404 (2d Dept. 2014).

Here is the decision.

Monday's issue: Transfer of assets and Medicaid ineligibility.

Thursday, April 17, 2014

A time-barred fraud claim.

Practice point:  A fraud-based action must be commenced within six years of the fraud, or within two years from the time the plaintiff discovered the fraud, or could with reasonable diligence have discovered it, whichever is later, pursuant to CPLR 213[8].

Student note:  On a motion to dismiss a complaint as time-barred, pursuant to CPLR 3211(a)(5), the defendant must establish, prima facie, that the time in which to commence the action has expired. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

Case: Belzer v. Hirsch, NY Slip Op 02403 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Legal malpractice claims and settlements.