Monday, April 30, 2012

Psychiatrist's malpractice.

Practice point:  For a psychiatrist to be held liable for malpractice based upon a decision made in connection with a patient's treatment or a decision to discharge a patient from a hospital, it must be shown that the treatment decisions represented something less than a professional medical determination, or that the psychiatrist's decisions were not the product of a careful evaluation.

Student note: A psychiatrist may not be held liable for a mere error in professional judgment.

Case: Ballek v. Aldana-Bernier, NY Slip Op 02823 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Anticipatory breach.

Friday, April 27, 2012

Injuries caused by a defective condition.

Practice point: The plaintiff must show that the landowner either created the defective condition, or had actual or constructive notice of the defect.

Student note: When a defendant-property owner lends allegedly dangerous or defective equipment to a worker who is injured during its use, the defendant moving for summary judgment must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition.

Case: Arredondo v. Valente, NY Slip Op 02821 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Psychiatrist’s malpractice.

Thursday, April 26, 2012

Disqualifying a firm.

Practice point: The plaintiff sought to associate or merge with another law firm, one of which was the firm representing the defendant in this action. In discussions between the plaintiff and the firm, the plaintiff's principal allegedly disclosed certain information regarding, billing rates and the plaintiff's prior representation of the defendant's decedent. After the commencement of the instant action, the plaintiff learned that the firm was representing the defendant. The plaintiff moved to disqualify the firm, and the motion was granted.

Student note: The discussions between the plaintiff and the firm, which purportedly included matters at issue in the instant action, create the danger that confidences were disclosed, thus warranting the disqualification of the firm.

Case: Jacobs v. Parker, NY Slip Op 02818 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Injures caused by a defective condition.

Wednesday, April 25, 2012

Slips and falls.

Practice point: Evidence of an unremedied condition that recurred and caused prior accidents because it was not addressed can constitute constructive notice.

Student note: While strewn MetroCards constitute a recurrent condition, a court cannot impose a duty upon a municipal authority to alter its cleaning schedule or hire additional cleaners without a showing that the established scheduled is manifestly unreasonable. Where as here, a reasonable cleaning routine was established and followed, liability will not be imposed.

Case: Harrison v. New York City Tr. Auth., NY Slip Op 02753 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Disqualifying a firm.

Tuesday, April 24, 2012

Capacity to sue.

Practice point: Dismissal pursuant to Business Corporation Law § 1312(a), which requires the registration of a foreign corporation doing business in New York, is not jurisdictional, but, instead, affects the legal capacity to sue. Accordingly, a motion to dismiss for lack of compliance with Business Corporation Law § 1312(a) is properly brought pursuant to CPLR 3211(a)(3), not (a)(8).

Student note: The question of capacity to sue is conceptually distinct from the question of standing.

Case:  Digital Ctr. S.L. v. Apple Indus., Inc., NY Slip Op 02806 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Slips and falls.

Monday, April 23, 2012

Construing a lease.

Practice point: A proprietary lease is a valid contract that must be enforced according to its terms, and, in the interpretation of leases, the same rules of construction apply as are applicable to contracts generally.

Student note: The court found that, contrary to the co-op's arguments, none of the provisions upon which it relied supported a basis upon which it can recover, from the proceeds of the sale of the apartment, its costs for security services.

Case: Himmelberger v. 40-50 First Rd. Apts. Corp., NY Slip Op 02636 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Capacity to sue.

Friday, April 20, 2012

Bus injury cases.

Practice point: To establish a prima facie negligence case for a passenger’s injuries sustained as a result of the movement of the bus, the plaintiff must establish that the movement consisted of a jerk or lurch that was unusual or violent.

Student note: Proof that the stop was unusual or violent must consist of more than a mere characterization of the stop in those terms by the plaintiff. There must be objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the defendant’s negligence.

Case: Gioulis v. MTA Bus Co., NY Slip Op 02632 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Construing a lease.

Thursday, April 19, 2012

Dismissal based on documentary evidence.

Practice point: A party seeking dismissal pursuant to CPLR 3211(a)(1), on the ground that its defense is founded upon documentary evidence, has the burden of resolving all factual issues as a matter of law, and conclusively disposing of the plaintiff's claim.

Student note: Affidavits do not constitute documentary evidence for the purposes of the motion to dismiss.

Case: Flushing Sav. Bank v. Siunykalami, NY Slip Op 02629 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Bus injury cases.

Wednesday, April 18, 2012

Premises security cases.

Practice point: The necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance.

Student note: While the plaintiff claimed that the defendants should have provided her with a deadbolt lock in addition to the kitchen door lock she purchased herself, she failed to submit any evidence that the original lock provided by the landlord, which she replaced, had not functioned properly or that the original lock did not constitute a minimal security measure adequate to protect her from foreseeable harm.

Case: Ferguson v. Antaeus Realty Corp., NY Slip Op 02628 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Dismissal based on documentary evidence.

Tuesday, April 17, 2012

Premises liability cases.

Practice point: A defendant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Student note: Although the presence of a loaded gun may constitute a dangerous condition, the mere presence of a gun in the defendant's house was not sufficient to establish, as a matter of law, the defendant's liability founded on the presence of a dangerous condition, absent proof that the defendant had actual or constructive knowledge that the gun was loaded.

Case: Abrams v. Berelson, NY Slip Op 02618 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Premises security cases.

Monday, April 16, 2012


Practice point: The defense is unavailable to the claims of breach of contract, breach of fiduciary duty, and for the return of management fees.

Student note: Although brought together as a derivative action, these causes of action are not equitable in nature.

Case: Garber v. Stevens, NY Slip Op 02437 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Premises liability cases.

Friday, April 13, 2012

Construing a guaranty.

Practice point: Although the guaranty was only for the first two years of the lease, the court awarded the landlord the entire accelerated rent amount through the end of the six year lease term. This did not subject the individual guarantor to a greater obligation than he intended or offend the rule of strict construction of guaranties.

Student note:The possibility of acceleration was in the lease that the guarantor signed, and tenant's default in rent and the acceleration took place within the period of the guaranty.

Case: Hawthorne Gardens, LLC v. Salman Home, Inc., NY Slip Op 02436 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Laches.

Thursday, April 12, 2012

Summary judgment motions.

Practice point: Summary judgment is not warranted where credible evidence reveals differing versions of the accident.

Student note: While hearsay statements may be used to oppose the motion, such evidence is insufficient to warrant the motion's denial where it is the only evidence submitted in opposition.

Case: Taylor v. One Bryant Park, LLC, NY Slip Op 02427 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Construing a guaranty.

Wednesday, April 11, 2012

Assumption of the risk.

Practice point: The doctrine does not exculpate a landowner from liability for ordinary negligence in maintaining a premises.

Student note: Here, however, defendants established as a matter of law that the uneven condition of the soccer field’s artificial turf was open and obvious, and was not the result of defendants' negligence in maintaining the field.

Case: Benolol v. City of New York, NY Slip Op 02426 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Summary judgment motions.

Tuesday, April 10, 2012

Striking a pleading.

Practice point: While CPLR § 3126 authorizes the striking of a party's pleadings, this extreme sanction is only authorized when a party refuses to obey an order for disclosure or willfully refuses to disclose information which the court finds ought to have been disclosed.

Student note: Here, where plaintiff had already been sanctioned for its failure to provide discovery and where defendants premised their motion to strike primarily on plaintiff's failure to proceed with court-ordered mediation, CPLR § 3126 does not apply.

Case: Carnegie Assoc. Ltd. v. Miller, NY Slip Op 02422 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Assumption of the risk.

Monday, April 9, 2012

Probative value.

Practice point: An attorney’s affirmation or a witness’ affidavit which is not based on personal knowledge is of no probative or evidentiary value.

Student note: Similarly, an alleged expert’s letter, unsworn and without specifying the writer’s qualifications, is not evidentiary material in admissible form, and is of no probative value.

Case: Currie v. Wilhouski, NY Slip Op 02281 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Striking a pleading.

Friday, April 6, 2012


Practice point: Contempt is a drastic remedy which should not be granted absent a clear right to the relief.

Student note: Defendants’ failure to appear for a continued deposition on the advice of counsel, based upon an imminent bankruptcy filing, does not rise to the level of contempt. Even though it was in disobedience of a court order, plaintiff failed to show that it was prejudiced, since plaintiff's counsel had failed to pursue relevant questions in the earlier deposition and is still able to depose defendant.

Case: Benson Park Assoc. LLC v. Herman, NY Slip Op 02399 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Probative value.

Thursday, April 5, 2012


Practice point: The trucking company appointed an agent for service of process in New York, and that is consent to suit in the State.

Student note: The truck driver, a Georgia resident, was driving from Florida to Massachusetts, when the accident happened in New Jersey, and so there is no basis for personal jurisdiction over him.

Case: Pena v. R & B Transp., NY Slip Op 02389 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Contempt.

Wednesday, April 4, 2012

Slips and falls.

Practice point: Plaintiff alleged that she slipped and fell in a puddle on an exterior landing, and that two yellow caution cones had been placed against the wall, to her right and left, as she exited, but not in the area of the liquid condition. The presence of caution cones created a triable issue of fact as to prior actual notice of the condition, as defendants' witness admitted that they would place such caution cones to alert others to a slippery condition, and plaintiff denied that the cones were being used to prop open a door, as had been alleged by owner-defendants' witness.

Student note: While the hearsay portions of a witness affidavit submitted in opposition to a summary judgment motion, which referred to an unidentified person or persons having admitted prior notice of the condition, are inadmissible, the witness's first-hand account of giving defendants notice of the condition at least 45 minutes before the accident raises triable issues of fact as to prior actual and constructive notice.

Case: Rosado v. Phipps Houses Servs., Inc., NY Slip Op 02385 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Jurisdiction.

Tuesday, April 3, 2012

Bills of particulars.

Practice point: The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial.

Student note: Pursuant to CPLR 3043(b), a party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities, provided  that no new cause of action may be alleged or new injury claimed.

Case: Jurado v. Kalache, NY Slip Op 02083 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Slips and falls.

Monday, April 2, 2012

Workers' Compensation.

Practice point: This is the exclusive remedy when the hospital’s employee-plaintiff was injured when she tripped on a sidewalk adjacent to the emergency room, on her way back from the hospital’s human resources department to her own office, during working hours.

Student note: Even if the trip to human resources were purely personal, plaintiff was returning to her office for the purpose of resuming work, and was injured on property which her employer was responsible to maintain.

Case: Patricka v. City of New York, NY Slip Op 02163 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Bills of particulars.