Thursday, May 31, 2012

Moving to dismiss a medical malpractice claim.


Practice point: On the motion to dismiss, a defendant must make a prima facie showing that there was no departure from good and accepted medical practice, or, if there was a departure, that the plaintiff was not injured thereby. Upon such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing so as to demonstrate the existence of a triable issue of fact.

Student note: General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat the motion.

Case: Bezerman v. Baline, NY Slip Op 03971 (2d Dept. 2012).


Tomorrow’s issue: The 90-day notice.

Wednesday, May 30, 2012

Transfer of interest in a cause of action.


Practice point: Pursuant to CPLR 1018, upon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action.

Student note: In the absence of an order directing a substitution, the plaintiff was entitled to continue this action notwithstanding the fact that, after commencing the action, he executed an assignment transferring all right, title, and interest in his legal malpractice cause of action to another.

Case: Bey v. Flushing Hosp. Med. Ctr., NY Slip Op 03970 (2d Dept. 2012).


Tomorrow’s issue: Moving to dismiss a medical malpractice claim.

Tuesday, May 29, 2012

Regulating discovery.


Practice point: The order that plaintiff was not to have his own personal recording device during depositions was an appropriate exercise of the court's power to regulate discovery, pursuant to CPLR 3103, especially given plaintiff's habit of tape recording conversations without notice to his interlocutor.

Student note: Plaintiff was required to provide his mental health records, as he had affirmatively placed his mental and emotional state at issue, and because plaintiff had not yet produced any documents, but admitted to having responsive documents, the court properly ordered him to produce the documents.

Case: Retamozzo v. Quinones, NY Slip Op 03888 (1st Dept. 2012).


Tomorrow’s issue: Transfer of interest in a cause of action.

Monday, May 28, 2012

Honor Veterans.


A special thanks to Veterans, no matter where or when you served.

The courts are closed to mark Memorial Day.

Tomorrow’s issue: Regulating discovery.

Friday, May 25, 2012

Lack of informed consent.


Practice point: To establish the cause of action, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances; (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed; and (3) that the lack of informed consent is a proximate cause of the injury.

Student note: Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions.

Case: Magel v. John T. Mather Mem. Hosp., NY Slip Op 03813 (2d Dept. 2012).


Tuesday’s issue: Regulating discovery.

Thursday, May 24, 2012

Rear-end collisions.


Practice point: When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over the vehicle, and to exercise reasonable care to avoid colliding with the other vehicle.

Student note: Therefore, a rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision.

Case Denezzo v. Joseph, NY Slip Op 03799 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Lack of informed consent.

Wednesday, May 23, 2012

Liability for an independent contractor's negligence.


Practice point: A party who retains an independent contractor, as distinguished from an employee or servant, is not liable for the independent contractor's negligent acts.

Student note: The underlying rationale for the rule is that one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor.

Case: Calandrino v. Town of Babylon, NY Slip Op 03795 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Rear-end collisions.

Tuesday, May 22, 2012

A civilian complainant's liability for false arrest.


Practice point: A civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution.

Student note: However, there may be liability if the civilian affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition.

Case: Boadu v. City of New York, NY Slip Op 03581 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Liability for an independent contractor’s negligence.

Monday, May 21, 2012

Loss of consortium.


Practice point: The cause of action does not lie if the alleged tortious conduct and resultant injuries occurred prior to the marriage.

Student note: Although New York does not itself recognize common-law marriages, a common-law marriage contracted in another State will be recognized as valid here if it is valid where contracted.

Case: Holmes v. Maimonides Medical Med. Ctr., NY Slip Op 03410 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: A civilian complainant’s liability for false arrest.

Friday, May 18, 2012

An emergency responder's reckless disregard.


Practice point: The reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road in § 1104(b).

Student note: Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.

Case: Fajardo v. City of New York, NY Slip Op 03402 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Loss of consortium.

Thursday, May 17, 2012

A school's duty to supervise.


Practice point: Schools are under a duty to adequately supervise the students in their charge,and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.

Student note: Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students. Therefore, schools will not be held liable for every thoughtless or careless act by which one pupil may injure another.

Case: Benavides v. Uniondale Free School Dist., NY Slip Op 03393 (2d Dept. 2012).

Here is the decision.

 Tomorrow’s issue: An emergency responder’s reckless disregard.

Wednesday, May 16, 2012

Statute of frauds.


Practice point: An agreement which violates the statute of frauds may nonetheless be enforceable where there has been part performance unequivocally referable to the contract by the party seeking to enforce the agreement.

Student note: “Unequivocally referable” conduct is conduct which is inconsistent with any other explanation.

Case: Barretti v. Detore, NY Slip Op 03390 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: A school’s duty to supervise.

Tuesday, May 15, 2012

The storm-in-progress rule.


Practice point: A municipality generally cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm.

Student note: If the municipality makes a prima facie showing that the accident occurred while a storm was in progress, the burden shifts to the plaintiff to raise a triable issue of fact as to whether the precipitation from the storm in progress was not the cause of the accident.

Case:  Ali v. Village of Pleasantville, NY Slip Op 03385 (2d Dept. 2012).

Here is the decision.

 Tomorrow’s issue: Statute of frauds.

Monday, May 14, 2012

Labor Law.


Practice point: The reference in 12 NYCRR 23-1.7(d) to ‘passageways’ can encompass a permanent staircase, when that staircase is the sole access to the work site.

Student note: § 241(6) does not apply to routine exterior window washing.

Case: Wowk v. Broadway 280 Park Fee, LLC, NY Slip Op 03274 (1st Dept. 2012).

Here is the decision.

 Tomorrow’s issue: The storm-in-progress rule.

Friday, May 11, 2012

Landlord's duty to protect.


Practice point: While a landlord is not an insurer of tenant safety, a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances.

Student note: This duty includes an obligation to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person, but this duty only arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so.

Case: Banner v. New York City Housing Auth., NY Slip Op 03269 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Labor Law.

Thursday, May 10, 2012

Correcting a judgment.


Practice point: Under CPLR 5019(a), a trial court has the discretion to correct a judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party.

Student note: Where the alleged error is substantive, other than one that is clearly inconsistent with the intentions of the court and the parties as demonstrated by the record, relief should be obtained either through an appeal from the judgment, or, if grounds for vacatur exist, through a motion to vacate pursuant to CPLR 5015(a).

Case: Johnson v. Societe Generale S.A., NY Slip Op 03268 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Landlord’s duty to protect.                    

Wednesday, May 9, 2012

The continuous treatment doctrine.


Practice point: A physician or hospital cannot escape liability under the doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, where it treated the patient continuously over the relevant time period for symptoms that are ultimately traced to that condition.

Student note: The premise underlying the doctrine is that a plaintiff should not have to interrupt ongoing treatment to bring a lawsuit, because the doctor not only is in a position to identify and correct the malpractice, but also is best placed to do so.

Case: Chestnut v. Bobb-McKoy, NY Slip Op 03267 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue:  Correcting a judgment.

Tuesday, May 8, 2012

Mechanic's liens.


Practice point: A contractor who performs work for, or provides equipment to, a tenant may impose a mechanic's lien against the premises, where the owner of the premises affirmatively gave consent for the work or equipment directly to the contractor, but not where the owner has merely approved or acquiesced in the undertaking of such work or the providing of such equipment.

Student note: To sustain the lien, the owner must either be an affirmative factor in procuring the improvement to be made, or, having possession and control of the premises, assent to the improvement in the expectation that the owner will reap the benefit of it.

Case: Mediterranean Contr., Inc. v. 115 Hoyt, LLC, NY Slip Op 03149 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: The continuous treatment doctrine.

Monday, May 7, 2012

Seeking a temporary injunction.


Practice point: A motion for a temporary injunction opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading.

Student note: However, this power does not extend to an evaluation of conflicting evidence, and so the motion court may not, on its own initiative, convert a motion for a preliminary injunction into one for summary judgment without giving adequate notice to the parties and affording them an opportunity to lay bare their proof.

Case: Grand Aerie of Fraternal Order of Eagles v. Mostrando, NY Slip Op 03139 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Mechanic’s liens.

Friday, May 4, 2012

Account stated.


Practice point: An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due. The agreement may be express, or it may be implied by the retention of a bill without objection for an unreasonable period of time and from the surrounding circumstances.

Student note: Whether a bill has been held without objection for a period of time sufficient to give rise to an inference of assent is ordinarily a question of fact, and becomes a question of law only in those cases where only one inference is rationally possible.

Case: Accent Collections, Inc. v. Cappelli Enters., Inc., NY Slip Op 03120 (2d Dept. 2012).

Here is the decision.

Monday’s issue:  Seeking a temporary injunction.

Thursday, May 3, 2012

Tort actions against the City.


Practice point: A tort action against a municipality cannot be maintained unless a timely notice of claim is served, and the action is commenced within one year and 90 days after the happening of the event upon which the claim is based.

Student note: The court is without power to consider an application to file a late notice of claim after expiration of that limitations period.

Case: Turner v. City of New York, NY Slip Op 03107 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue:  Account stated.

Wednesday, May 2, 2012

Appeals from final and non-final judgments.


Practice point: Pursuant to CPLR 5501(a)(1), an appeal from a final judgment brings up for review any non-final judgment or order which necessarily affects the final judgment.

Student note: When an appeal from an intermediate order is perfected together with an appeal from a final judgment, the appeal from the intermediate order must be dismissed and any error alleged, to the extent that it affects the final judgment, may be reviewed upon the appeal from the final judgment.

Case: Retta v. 160 Water St. Assoc., L.P., NY Slip Op 03092 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Tort actions against the City.

Tuesday, May 1, 2012

Anticipatory breach.


Practice point: By definition an anticipatory breach cannot be committed by a party already in material breach of an executory contract. It is well settled that an anticipatory breach of a contract is one that occurs before performance by the breaching party is due.

Student note: The rationale behind the doctrine is that it gives the non-repudiating party an opportunity to treat a repudiation as an anticipatory breach without having to futilely tender performance or wait for the other party's time for performance to arrive.

Case: Kaplan v. Madison Park Group Owners, LLC, NY Slip Op 03086 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Appeals from final and non-final judgments.