Monday, November 30, 2015

Construing contracts.

Practice point:  A contract will be construed in accordance with the parties' intent, which is generally discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. A contract is unambiguous if its language has a definite and precise meaning, unattended by the danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion.  A contract is considered ambiguous when, read as a whole, it does not disclose its purpose and the parties' intent, or when specific language is susceptible of two reasonable interpretations.

Whether a contract is ambiguous is an issue of law, and, if a court determines that a contract is ambiguous, it may consider extrinsic evidence in order to determine the parties' intent.

Student note:  The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach.

Case:  Legum v. Russo, NY Slip Op 08149n (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Partition and sale of an apartment.

Friday, November 27, 2015

The Whistleblower Law.

Practice point:  The Appellate Division affirmed dismissal of the retaliation claim, finding that allegations that plaintiff reported an assault and battery by a supervisor fail to state a claim under Labor Law § 740, the Whistleblower Law. Assault and battery by a supervisor is not "an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud," as specified in § 740[2][a].

Student note:  The Appellate Division will not consider a claim asserted for the first time on appeal.

Case:  Diaz v. New York State Catholic Health Plan, Inc., NY Slip Op 08129 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Construing contracts.

Wednesday, November 25, 2015

Summary judgment in a slip-and-fall action.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion in this action where plaintiff alleges that he fell in the boiler room of the building where he worked as a maintenance worker when he attempted to back out of a tight area next to the boiler and his pants got caught on a brace or bracket supporting a pipe. Defendant, the owner of the building, established its entitlement to summary judgment by submitting photographic and testimonial evidence showing that the brace or bracket was not a defective condition, but was open and obvious, and not inherently dangerous. As was shown in the photographs, the condition was plainly observable and did not pose any danger to someone making reasonable use of his or her senses.

Student note:  Although plaintiff did not see the brace or bracket when he was backing up, it was not hidden or obscured from view and thus did not constitute a trap or snare. Contrary to plaintiff's arguments, defendant was not required to present expert testimony to meet its initial burden, and the issue of notice is irrelevant since there was no defective or dangerous condition in the boiler room.

Case:  Acosta v. Gouverneur Ct. L.P., NY Slip Op 08125 (1st Dept. 2015)

Here is the decision.

Friday's issue:  The Whistleblower Law.

Tuesday, November 24, 2015

Expert witness testimony in a medical malpractice action.

Practice point:  The Appellate Division rejected as without merit defendant's contention that plaintiff's expert was unqualified to give an expert opinion on the standard of care of a general surgeon and an anesthesiologist merely because the expert was a cardiologist. An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable.  Once a medical expert establishes knowledge of the relevant standards of care, the witness need not be a specialist in the particular area at issue to offer an opinion. Any lack of skill or expertise goes to the weight of the opinion as evidence, not its admissibility.

Student note:  In order to establish liability for medical malpractice, a plaintiff must prove that the defendant deviated or departed from accepted community standards of practice and that such departure was a proximate cause of the plaintiff's injuries.  On a motion for summary judgment, a defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In opposition, a plaintiff must 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.

Case:  Leavy v. Merriam, NY Slip Op 08148 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in a slip-and-fall action.

Monday, November 23, 2015

Operating a vehicle with the right-of-way.

Practice point:  An operator of a motor vehicle traveling with the right-of-way has an obligation to keep a proper lookout and to see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles.

Student note:  As there can be more than one proximate cause of an accident, a plaintiff moving for summary judgment on the issue of liability has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault.  Generally, the issue of comparative fault is a jury question.

Case:  Jones v. Pinto, NY Slip Op 08147 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Expert witness testimony in a medical malpractice action.

Friday, November 20, 2015

Evidence of habit in a negligence case.

Practice point:  In a negligence case, a  party may introduce evidence of a habit or routine practice in order to allow the inference of its persistence, and, therefore, negligence on a particular occasion. However, to justify introduction of evidence as to habit or regular usage, there must be a showing that the party expects to prove a sufficient number of instances of the conduct in question.

Student note:  Here, the earliest proffered instance of the purported habit occurred more than two months after the date on which the appellant was injured, and was observed on only seven occasions over the next six weeks. The court, in its discretion, properly precluded the proffered evidence.

Case:  Gucciardi v. New Chopsticks House, Inc., NY Slip Op 08146 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Operating a vehicle with the right-of-way.

Thursday, November 19, 2015

An injury resuting from an elevation-related risk.

Practice point:  The Appellate Division affirmed the granting of that branch of defendant's motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). Defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff's injury was not caused by the elevation-related hazards encompassed by the statute. In opposition, plaintiff failed to raise a triable issue of fact as to whether his injury arose from an elevation-related risk contemplated by the statute, rather than from the usual and ordinary dangers of the construction site. The fact that plaintiff was injured while lifting a heavy object does not give rise to liability within the meaning of the statute.

Student note:  The extraordinary protections of § 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity.  The statute was designed to prevent accidents in which a protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.

Case:  Cardenas v. BBM Constr. Corp., NY Slip Op 08142 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Evidence of habit in a negligence case.

Wednesday, November 18, 2015

A motion to vacate a self-executing preclusion order.

Practice point:  The Appellate Division affirmed the denial of plaintiff's cross motion to vacate the self-executing preclusion order, as plaintiff failed to provide a reasonable excuse for his failure to appear at defendant's five separately scheduled medical examinations, two of which occurred after the issuance of the preclusion order.  Plaintiff's claimed lack of knowledge of the scheduled medical examinations is unreasonable, especially since he failed to indicate any efforts he made to stay in contact with his counsel, despite the fact that there were two court orders directing that he appear for his medical examination. Plaintiff does not deny that he was aware of those orders. His counsel also failed to confirm his assertions that he had no contact with his counsel, or that they mailed medical examination notices to plaintiff's mother's address.

Plaintiff also failed to show that his was a meritorious claim.  He failed to submit an affidavit of merit, and the only evidence he submitted as proof of defendant's liability was a police accident report containing his hearsay statement as to how the accident happened. This is insufficient to demonstrate a meritorious cause of action.

Student note:  The preclusion of any testimony as to plaintiff's medical condition rendered him unable to establish a prima facie case.

Case:  Arzuaga v. Tejada, NY Slip Op 08108 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  An injury resulting from an elevation-related risk.

Tuesday, November 17, 2015

Vicarious liability in a personal injury claim against a bouncer.

Practice point: When security guards or bounders are hired to maintain order, they may be acting within the scope of their employment when they use physical force on the businesses' patrons.

Student note:  An employer may be vicariously liable for its employees' negligence or intentional tortious conduct, as long as the employee's acts were committed in furtherance of the employer's business.

Case:  Fauntleroy v. EMM Group Holdings LLC, NY Slip Op 08106 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion to vacate a self-executing preclusion order.

Monday, November 16, 2015

A motion for leave to reargue.

Practice point:  No appeal lies from the denial of a motion for leave to reargue.

Student note:  The right of direct appeal of an intermediate order terminates with the entry of judgment in the action.

Case:  Green v. Canada Dry Bottling, NY Slip Op 07949 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Vicarious liability in a personal injury claim against a bouncer.

Friday, November 13, 2015

Additional discovery after filing a note of issue.

Practice point:  The Appellate Division reversed, and denied that branch of the defendant's renewed motion which was to compel the plaintiff to submit to an independent medical examination.

The Appellate Division held that the defendant waived her right to conduct an independent medical examination of the plaintiff by failing to designate a physician to conduct such examination within the time period set forth in the relevant compliance conference order, and by her failure to move to vacate the note of issue within 20 days after service of the note of issue and certificate of readiness, pursuant to 22 NYCRR 202.21[e].

Student note:  The Supreme Court may, in its discretion, permit additional discovery after the filing of a note of issue and certificate of readiness where the movant demonstrates that unusual or unanticipated circumstances developed subsequent to the filing, requiring additional pretrial proceedings to prevent substantial prejudice, pursuant to 22 NYCRR 202.21[d].

Case:  Gianacopoulos v. Corona, NY Slip Op 07948 (2d Dept. 2015)

Here is the decision.

Monday's issue:  A motion for leave to reargue.

Thursday, November 12, 2015

Comparative negligence and the seat-belt defense in an auto accident action.

Practice point:  Regardless of an issue of comparative negligence as between the driver of the vehicle in which plaintiff was a passenger and the driver of the other vehicle, plaintiff may seek partial summary judgment against the other vehicle's driver.

Student note:  The assertion of a seat-belt defense goes to the determination of damages, as a potentially mitigating factor, and not to liability.

Case:  Davis v. Turner, NY Slip Op 07922 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Additional discovery after filing a note of issue.

Wednesday, November 11, 2015

Court holiday.


Tuesday, November 10, 2015

Interest in an action to recover on a promissory note.

Practice point:  If the note does not contain an interest provision but is payable on demand, then interest accrues from the date of the demand, at the statutory rate for a judgment.  Here, the only record evidence as to a demand for payment by plaintiff under the note is a demand letter dated July 24, 2009, and so that is the date from which the prejudgment interest should be calculated.

Student note:  In an action on a promissory note, CPLR 5001 permits a creditor to recover prejudgment interest from the date on which each payment of principal or interest became due under the terms of the note until the date on which liability is established.

Case:  Gliklad v. Cherney, NY Slip Op 07919 (1st Dept. 2015)

Here is the decision.

Thursday's issue:  Comparative negligence and the seat-belt defense in an auto accident action.

Monday, November 9, 2015

Testimony of a witness who was not identified prior to trial.

Practice point:  The Appellate Division determined that the trial court properly permitted the testimony of a witness whose identity was not disclosed prior to trial. The witness was called to lay the foundation for the admission of a nonparty witness's statement, and he was not the type of witness whose identity was required to be disclosed during discovery, pursuant to CPLR 3101.

Student note:  The witness's testimony was not hearsay.

Case:  Cruz v. City of New York, NY Slip Op 07910 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Interest in an action to recover on a promissory note.

Friday, November 6, 2015

Leave to amend the complaint.

Practice point:  The Appellate Division reversed the motion court and denied so much of plaintiff's motion as sought to amend the complaint to add a cause of action for wrongful death, finding that the proposed amendment was palpably insufficient.

The Appellate Division determined that the record shows that plaintiff's decedent suffered from numerous serious ailments prior to the alleged malpractice, and did not die until nearly two years after the alleged malpractice. There had been a number of other procedures performed by nondefendants, and plaintiff's decedent had been in the care of other nondefendants for those two years.  The conclusory assertion of causation, as stated in plaintiff's counsel's supporting affirmation, was insufficient to establish a causal connection between the decedent's death and the originally alleged malpractice by defendants.

Student note:  A motion seeking leave to amend a complaint to assert a cause of action for wrongful death must be supported by competent medical proof of the causal connection between the alleged malpractice and the original plaintiff's death.

Case:  Imperati v. Lee, NY Slip Op 07907 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Testimony of a witness who was not identified prior to trial.

Thursday, November 5, 2015

Contractual indemnification.

Practice point:  The right to contractual indemnification depends upon the specific language of the contract.  A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances.

Student note:  A party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.

Case:  Bleich v. Metropolitan Mgt., LLC, NY Slip Op 07808 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to amend the complaint.

Wednesday, November 4, 2015

Contractual terms of duration.

Practice point:   A definite term of duration need not be relayed in express terms, and may be implied. In the absence of an express term fixing the contract's duration, a court supply the missing term, so long as a duration may be fairly and reasonably fixed by the surrounding circumstances and the parties' intent.

Student note:  Contracts containing no definite term of duration are terminable at will.

Case:  Bennett v. Atomic Prods. Corp., NY Slip Op 07806 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contractual indemnification.

Tuesday, November 3, 2015

Calculating interest.

Practice point:  The Appellate Division modified the jury award to plaintiff, vacating the award of interest and remanding for interest to be calculated at the rate of 3%, not 9%, from the date of the liability verdict.

The Appellate Division explained that, although the judgment is against the City, and not the New York City Transit Authority, which is not a party to the action, the Transit Authority is the real party in interest, as it is bound to indemnify the City pursuant to a lease, and will ultimately pay the judgment. Therefore, the interest rate set forth in Public Authorities Law § 1212(6) applies to the judgment. Even though the City did not object to the interest rate when the judgment was proposed for settlement, the 3% interest rate is mandated by statute, and the error should be corrected.

Student note:  Pursuant to Public Authorities Law § 1212(6), the rate of interest on the judgment may be no more than 3% per year.

Case:  Soltero v. City of New York, NY Slip Op 07739 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contractual terms of duration.

Monday, November 2, 2015

Dismissal with another action pending.

Practice point:  The Appellate Division affirmed dismissal of the complaint, pursuant to CPLR 3211(a)(4), as it is undisputed that there was a pending foreclosure action on the same mortgage commenced by plaintiff's predecessor-in-interest.

Student note:  Where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211(a)(4) on the ground that there is another action pending.  The critical element is that both suits arise out of the same subject matter or series of alleged wrongs.

Case:  Aurora Loan Servs., LLC v. Reid, NY Slip Op 07607 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Calculating interest.