Tuesday, July 31, 2012

Violation of medical privacy.


Practice point: The claim was dismissed because defendants are neither physicians nor employees of a nursing home or a facility providing health-related services.

Student note: The Health Insurance Portability and Accountability Act and its regulations do not create a private right of action.

Case: Romanello v. Intesa Sanpaolo S.p.A., NY Slip Op 05595 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Jurisdiction.

Monday, July 30, 2012

Badminton injury.


Practice point: Defendant's motion for summary judgment dismissing the complaint was granted. At his deposition, the infant plaintiff described the activity as trying to spike the shuttlecock to a place away from the other player, in order to score points. This testimony established that the plaintiff was struck by an errant shot. The defendant established that it properly supervised the plaintiff, but, regardless, the plaintiff was injured by an errant shot of the shuttlecock that occurred in such a short period of time that any alleged lack of supervision was not a proximate cause of the injuries.

Student note: Plaintiff's expert’s affidavit submitted in opposition to the motion was insufficient to raise a triable issue of fact as to whether the defendant was negligent in failing to provide the plaintiff with protective eye gear, as there was no evidence to show that a recommendation to use such gear reflected a generally accepted standard or practice in high school.

Case: Gibbons v. Pine Bush Cent. Sch. Dist., NY Slip Op 05612 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Violation of medical privacy.

Friday, July 27, 2012

Duty to warn, and wheel stops.


Practice point: Although a landowner has a duty to maintain its premises in a reasonably safe manner, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous.

Student note: Generally, a wheel stop which is clearly visible presents no unreasonable risk of harm and, thus, is not inherently dangerous. The defendants made a prima facie showing that the wheel stop over which the plaintiff tripped, which was painted yellow in contrast to the color of the sidewalk to which it was affixed, was not an inherently dangerous condition, and was readily observable to those employing the reasonable use of their senses and, thus, open and obvious.

Case: Gallo v. Hempstead Turnpike, LLC, NY Slip Op 05611 (2d Dept. 2012).


Monday’s issue: Badminton injury.

Thursday, July 26, 2012

Discovery, and medical condition.


Practice point: There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by a party, pursuant to CPLR 3101[a][1]. The words “material and necessary” are to be interpreted liberally to require disclosure, if demanded, of any facts bearing on the controversy, if they will assist preparation for trial by sharpening the issues and reducing delay.

Student note: Where the mental or physical condition of a party is in controversy, a notice may be served pursuant to CPLR 3121(a) requiring that the party submit to a medical examination, or make available for inspection relevant hospital and medical records. The initial burden of proving that a party's medical condition is in controversy is on the party seeking the information, and it is only after such an evidentiary showing that discovery may proceed.

Case: Farkas v. Orange Regional Med. Ctr., NY Slip Op 05610 (2d Dept. 2012).


Tomorrow’s issue: Duty to warn, and wheel stops.

Wednesday, July 25, 2012

Vacating a default, and compelling defendant to accept a late answer.


Practice point: The court denied that branch of plaintiff's motion which was for leave to enter a judgment against defendant, upon its default in appearing or answering, and in granting defendant’s cross-motion to vacate  its default and to compel plaintiff to accept its late answer. While defendant had promptly sought an extension of time to answer, plaintiff ignored this request and instead moved for leave to enter a judgment against defendant. Thereafter, less than two months after its time to answer had expired, defendant served an answer. The court found that defendant acted diligently and never intended to abandon its defense or counterclaim.

Student note: In light of the lack of prejudice to plaintiff resulting from the short delay in serving an answer, the lack of willfulness on the defendant’s part, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, that branch of plaintiff's motion which was for leave to enter judgment on the issue of liability against defendant was providently denied, pursuant to CPLR 2004. Defendant's cross motion to compel plaintiff to accept its late answer was providently granted, pursuant to CPLR 3012 [d].

Case: Arias v. First Presbyt. Church in Jamaica, NY Slip 05606 (2d Dept. 2012).


Tomorrow’s issue: Discovery, and medical condition.

Tuesday, July 24, 2012

Employment discrimination based on disability.


Practice point: To state a prima facie case, a plaintiff must demonstrate that he or she suffered from a disability and that the disability caused the behavior for which he or she was terminated. Once a plaintiff establishes a prima facie case, the burden shifts to the employer, to show that the disability prevented plaintiff from performing the duties of the job in a reasonable manner, or that the employee's termination was motivated by a legitimate nondiscriminatory reason.

Student note: A reasonable accommodation is an action which permits an employee with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held,  provided, however, that such actions do not impose an undue hardship on the business, pursuant to Executive Law § 292 [21-e]. Under the City's Human Rights Law, an employer shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job, pursuant to Administrative Code § 8-107 [15][a]. An employer is not required to find another job for the employee, create a new job, or create a light-duty version of the current job.

Case: Jacobsen v. New York City Health and Hosps. Corp., NY Slip Op 05478 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Vacating a default, and compelling defendant to accept a late answer.

Monday, July 23, 2012

Defective products.


Practice point: A manufacturer may be held liable when its product contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warnings for the use of the product. A defectively designed product is one that is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use.

Student note: To recover for injuries caused by a defective product, the defect must have been a substantial factor in causing the injury, and the product must have been used for the purpose and in the manner normally intended or in a manner reasonably foreseeable.

Case: Hartnett v. Chanel, Inc., NY Slip Op 05477 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Employment discrimination based on disability.

Friday, July 20, 2012

Making out a defamation claim.


Practice point: Since falsity is a necessary element of the cause of action, and only facts are capable of being proven false, only statements alleging facts can properly be the subject of a defamation action.

Student note: In distinguishing between facts and opinion, the court must consider (1) whether the specific language has a precise meaning that is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact. The dispositive inquiry is whether a reasonable reader could have concluded that the statements were conveying facts about the plaintiff.

Case: Russell v. Davies, NY Slip Op 05507 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Defective products.

Thursday, July 19, 2012

Disclosing a cause of action as an asset in a bankruptcy proceeding.


Practice point: The failure to disclose a cause of action as an asset in a prior bankruptcy proceeding, when the party knew or should have known it existed at the time of that proceeding, deprives that party of the legal capacity to sue subsequently on that cause of action.

Student note: The fact that the bankruptcy petition was later dismissed does not change this result.

Case: Potruch & Daab, LLC v. Abraham, NY Slip Op 05505 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Making out a defamation claim.

Wednesday, July 18, 2012

Avoiding dismissal for failure to proceed.


Practice point: CPLR 3216 does not require, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on an unreasonable neglect to proceed. Although the statute prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever a plaintiff has shown a justifiable excuse for the delay and the existence of a potentially meritorious cause of action, such a dual showing is not strictly necessary in order for a plaintiff to escape dismissal.

Student note: Plaintiff’s failure to meet the deadline for filing the note of issue was excused  because there was only a three-day delay in filing, and the excuse of law office failure was reasonable. In addition, the defendants did not claim any prejudice, and there was no evidence of a pattern of persistent neglect and delay in prosecuting the action or of any intent to abandon the action.

Case: Gordon v. Ratner, NY Slip Op 05497 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Disclosing a cause of action as an asset in a bankruptcy proceeding.

Tuesday, July 17, 2012

Correcting a mistake in assembling a pleading.


Practice point: The Supreme Court properly considered the defendant’s motion for summary judgment on the merits. In his initial moving papers, rather than annexing his answer as an exhibit, he inadvertently annexed the answer of one of the codefendants. This problem was rectified in the reply affirmation of his counsel, who annexed a copy of the correct pleading as an exhibit.

Student note: While CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced. Here, no substantial right of the plaintiff was prejudiced by the corrective inclusion of a copy of  the defendant’s answer with his reply affirmation, and the Supreme Court properly exercised its discretion to consider the motion in its merits.

Case:  Avalon Gardens Rehabilitation & Health Care Ctr., LLC v. Morsello, NY Slip Op 05485 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Avoiding dismissal for failure to proceed.

Monday, July 16, 2012

Newly-discovered evidence.


Practice point: Pursuant to CPLR 4404(b), after a trial not triable as of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision and issue a new decision based newly-discovered evidence. Pursuant to CPLR 5015(a), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of, among other things, newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404.

Student note: In order for such relief under CPLR 4404(b) or 5015(a)(2), the movant must show that it could not have previously discovered the evidence, and the new evidence must be in admissible form.

Case: Da Silva v. Savo, NY Slip Op 05383 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Correcting a mistake in assembling a pleading.

Friday, July 13, 2012

An account stated.


Practice point: There was no prima facie showing of entitlement to judgment as a matter of law because the plaintiff did not submit sufficient evidence to establish that the defendant retained the account statements without objecting to them within a reasonable period of time. While an employee who reviewed the plaintiff's records stated by affidavit that the credit card statements were mailed to the defendant on a monthly basis, she failed to aver that the defendant retained these statements for a reasonable period of time without objecting to them. The plaintiff also submitted three checks as evidence of partial payments on the account statements. Two of these checks, however, were for payment of the full amount owed on the account at the time and predated the disputed charges. The third check, in the sum of $300, only reflected a small proportion of the debt owed at the time, approximately $19,000, and, by itself, did not create an inference of assent.

Student note: 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 implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account.

Case: Citibank v. Brown-Serulovic, NY Slip Op 05381 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Newly-discovered evidence.

Thursday, July 12, 2012

Motion for a joint trial.


Practice point: Where common questions of law or fact exist, the motion, pursuant to CPLR 602(a), should be granted absent a showing of prejudice to a substantial right of the party opposing the motion.

Student note: Mere delay is not a sufficient basis to justify the denial of the motion.

Case: Alzio v. Feldman, NY Slip Op 05378 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: An account stated.

Wednesday, July 11, 2012

Defamation.


Practice point: There is no cause of action relying on statements contained in affidavits submitted in opposition to plaintiffs' preliminary injunction motion, because those statements are protected by both the judicial proceedings and fair report privileges.

Student note: It is not a fatal defect that the an allegation does not specify which of the defendants made the statements.

Case: Fletcher v. Dakota, Inc., NY Slip Op 05338 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion for a joint trial.

Tuesday, July 10, 2012

Lack of personal jurisdiction, and forum non conveniens.


Practice point: Defendant did not waive this affirmative defense by moving for summary judgment dismissing the complaint on the merits, given that defendant had previously raised the jurisdictional defense.

Student note: The promissory note at issue contained a clause selecting New York as the forum, barring defendant's forum non conveniens motion.

Case: Gliklad v. Cherney,  NY Slip Op 05333 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Defamation.

Monday, July 9, 2012

Extending the time for service of a summons and complaint.


Practice point: A motion pursuant to CPLR 306-b to extend the time may be granted upon good cause shown, or in the interest of justice.

Student note: The court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the potentially meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant.

Case: Moundrakis v. Dellis, NY Slip Op 05152 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Lack of personal jurisdiction, and forum non conveniens.

Friday, July 6, 2012

Workers' Compensation and special employers.

Practice point: When an employee elects to receive Workers' Compensation benefits from his or her general employer, a special employer is shielded from any action at law commenced by the employee.

Student note: A special employee is one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome with a clear demonstration of the general employer’s surrender of control by the general employer and the special employer’s assumption of control. Principal factors in determining whether a special relationship exists include the right to control, the method of payment, the furnishing of equipment, the right to discharge, and the relative nature of the work. An especially important factor is who controls the manner, details, and ultimate result of the employee's work.

Case: Digirolomo v. Goldstein, NY Slip Op 05134 (2d Dept. 2012).
 
Here is the decision.

Monday’s issue: Extending the time for service of a summons and complaint.

Thursday, July 5, 2012

Leave to file a late notice of claim, and the continuous treatment doctrine.


Practice point: The court denied plaintiff’s motion for leave to extend their time to file a notice of claim against New York City Health & Hospitals Corporation, as the application was made beyond the time limit for the commencement of the action, namely, one year and 90 days, pursuant to Municipal General Law § 50-e[5].

Student note: Plaintiff did not establish that the June 16, 2011 visit was part of a continuous course of treatment, for purposes of tolling the statute of limitations, as there was no contemplation of further treatment at the May 2010 visit, no appointments were scheduled for monitoring, and plaintiff made no interim complaints concerning the condition.

Case: Diaz-Mazariegos v. New York City Health and Hosps. Corp., NY Slip Op 05082 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue:Workers’ Compensation and special employers.

Wednesday, July 4, 2012

Court holiday.


The Courts are closed to mark the holiday.

On this July Fourth, a special word of thanks to Veterans who served anywhere, at any time.

Tomorrow’s issue: Leave to file a late notice of claim, and the continuous treatment doctrine.

Tuesday, July 3, 2012

Worker's fall from a ladder.


Practice point: Plaintiff testified that while cleaning the top shelves of a closet, in an apartment that was undergoing a gut renovation, the A-frame ladder on which she was standing tipped over, and she fell to the ground with the ladder falling on top of her. The court found that plaintiff had made out a prima facie case of liability, and dismissal of the Labor Law 240(1) cause of action was improper. 

Student note: The court, however, denied summary judgment to plaintiff. The manner of the happening of the accident is within plaintiff’s exclusive knowledge, and the only evidence submitted in support of defendants' liability is plaintiff's account. Defendants should have the opportunity to subject plaintiff's testimony to cross-examination to explore whether she misused the ladder and was the sole proximate cause of the accident, and to have her credibility determined at trial.

Case: Grant v. Steve Mark, Inc., NY Slip Op 05075 (1st Dept. 2012).

Here is the decision.

 Thursday’s issue: Leave to file a late notice of claim, and the continuous treatment doctrine.

Monday, July 2, 2012

Dismissal for failure to appear at a calendar call.


Practice point: The Supreme Court, sua sponte, improperly dismissed the action pursuant to 22 NYCRR 202.27 on the ground that the plaintiffs failed “to proceed as directed by the court” when they did not appear on a scheduled court date. The plaintiffs demonstrated that they did not have notice of the trial calendar call of the action through the uncontroverted affidavit of their attorney, which stated that counsel did not receive any notice for a court appearance. Without notice of the court appearance, the default was a nullity, as was the remedy imposed by the Supreme Court as a consequence of the default.

Student note: In this situation, vacatur was required as a matter of law and due process, and no showing of a potentially meritorious cause of action was required.

Case: Pavlou v. Associates Food Stores, Inc., NY Slip Op 04982 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Worker’s fall from a ladder.