In connection with the sale of their residential property, defendants-sellers completed a Property Condition Disclosure Statement in which they answered "No" to certain questions, thereby indicating that there were: no material defects in the footings; no rotting or water damage; no flooding, drainage, or grading problems that resulted in standing water on any portion of the property; no seepage in the basement that resulted in standing water; and no known material defects in the plumbing system, foundation/slab, interior walls/ceilings, exterior walls or siding, floors, chimney and patio/deck, and that no radon test had been done.

Defendant-broker showed the property to plaintiff, and provided him with a copy of the Disclosure Statement. Plaintiff then contracted with defendant-inspection services to perform a home inspection. The inspection report did not state that there was any material defect in the property. The property went into contract and, subsequent to the closing, plaintiff allegedly discovered material defects in the property including: water leaking through the porch; the rear deck sinking because of excessive water and pooling of water; the roof separating from the rest of the house due to the deck sinking; improper footings on the deck; mold behind the sheetrock caused by water in the basement; the radon system blower was inoperative; a cracked chimney, rotted bathroom floors due to excessive water leakage; and evidence of long-term heavy water damage on the garage roof and walls.

Plaintiff commenced this action to recover damages, and the First Department found a cause of action in fraudulent misrepresentation, but denied a cause of action in breach of contract, in Simone v. Homecheck Real Estate Servs., which was decided on July 24, 2007.

As regards fraud, the court noted that New York adheres to the doctrine of caveat emptor and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller which constitutes active concealment. The mere silence of the seller, without some act or conduct which deceived the buyer, does not amount to a concealment that is actionable as a fraud. To maintain a cause of action to recover damages for active concealment in the context of a fraudulent nondisclosure, the buyer must show, in effect, that the seller thwarted the buyer's efforts to fulfill the buyer's responsibilities fixed by the doctrine of caveat emptor.

The court found that that the alleged false representations by the sellers in the Disclosure Statement may be proof of active concealment.

As regards the breach of contract, however, the court said that there is no cause of action where the contract specifically disclaims the existence of warranties or representations. Here, the contract of sale specifically provided that the property had been inspected by the buyer and was being sold "as is" without any warranty as to condition, express or implied. Furthermore, a specific merger clause is contained in the rider to the contract and precludes the buyer from claiming that he relied on any of the sellers' alleged misrepresentations. In addition, because title to the property had closed and the deed was delivered, the doctrine of merger extinguished any claim the buyer may have had regarding the contract of sale.

Plaintiff commenced this medical malpractice action on December 19, 2003, claiming, among other things, that defendant had failed to diagnose her thyroid cancer. In moving for summary judgment, defendant argued that any alleged acts of malpractice occurring before June 22, 2001, were time-barred because they took place more than two-and-one-half years before the suit was filed. Finding a triable issue as to whether the statute was tolled by the continuous treatment doctrine, the Second Department denied the motion, in Connors v. Eng, which was decided on July 24, 2007.

Plaintiff's affidavit demonstrated that she initially saw the defendant on May 19, 1988, for an evaluation of her thyroid and thyroid nodule, and that, until May 18, 2002, she returned to the defendant's office 41 times for the purpose of monitoring her thyroid nodule.

Defendant, a board-certified obstetrician/gynecologist who treated plaintiff during her pregnancy, was unexpectedly late in getting to the hospital to attend to plaintiff's labor and delivery. Nonetheless, he confirmed by telephone that an on-call attending obstetrician and the chief obstetrical resident were caring for the patient pending his arrival. Defendant arrived at the hospital shortly after the birth, when plaintiff was undergoing the repair of a perineal laceration which she had sustained during delivery.

After the delivery, plaintiff began to experience severe urinary incontinence, which has now been resolved, and approximately one year later she began to suffer from fecal incontinence. Approximately two-and-one-half years after giving birth, she underwent surgery to repair a torn sphincter. Plaintiff claimed that she continues to suffer from permanent fecal incontinence caused by nerve damage, and she contended that, with proper management by an experienced obstetrician/gynecologist, the perineum tear could have been avoided. Plaintiff argued that, had defendant been present, his experience might have led him to perform an episiotomy, which would have prevented the perineum tear that extended into her anal sphincter. Instead, she claimed, the delivery was left to an inexperienced resident, who performed a faulty repair of the perineal laceration.

The First Department dismissed the complaint, in Brown v. Bauman, which was decided on July 26, 2007. The court noted that a physician who is unable to care for the patient does not depart from the standard of care so long as the physician arranges to transfer the care of the patient to another well-qualified physician. On this record, the court determined that defendant had established, as a matter of law, his compliance with the requisite standard of care, even though there was some question as to exactly when, or even if, he specifically asked the other physicians to cover for him.

Taking the plunge and bearing the risks.

Plaintiff is an attorney and experienced investor who retained defendant to manage approximately $600,000 of plaintiff's assets. He had reviewed and completed various documents provided by defendant, including a questionnaire concerning his risk tolerance and management objective. Plaintiff's risk assessment stated that on a scale of 1 to 10, his risk comfort level was 6, with a maximum risk level of 8. His stated that his portfolio management objective was to "Beat the Market - High Risk/Return."

Plaintiff reviewed and signed an investment policy statement which provided that plaintiff's portfolio would be a moderately aggressive growth and equity portfolio, and that "the Investment Manager(s) has been given full investment discretion with respect to the portion of the Portfolio it manages to allocate among assets equities, fixed income securities and cash equivalents and to purchase and sell individual securities. Such investment discretion will be exercised consistent with the stated investment objectives, risk tolerance, goals and guidelines of the Portfolio." It went on to state, in two places, that the portfolio would be managed in a "prudent manner," and further provided that "The equity portions of the Portfolio should be well-diversified among economic sectors, industry groups, and individual securities to avoid any undue exposure in any part of the U.S. equity market."

After plaintiff's initial $599,000 investment had declined in value by 39% to approximately $365,000, he closed his account and commenced a class action on behalf of himself and all others whose investment accounts were managed by defendant. The First Department found no evidence that defendant had breached its fiduciary duty, and dismissed the complaint, in Vladimir v. Cowperthwait, which was decided on July 26, 2007.

The court noted that plaintiff was an experienced investor who habitually selected his own stocks for investment, using the services of a broker only to execute his buy and sell orders. His deposition testimony states he was looking for "growth" and that he "wanted to beat the market." The client agreement signed by plaintiff acknowledges that there was no guarantee that his investment strategy would be achieved. Plaintiff acknowledged in his examination before trial that prior to investing in the Large Cap Growth Equity Portfolio, he was provided with a list of all the companies in the portfolio, and, although he did not examine the list in detail, he noticed that some of the companies were in the technology sector and did not object to their being in the fund. He also testified that he regularly reviewed his monthly statements and repeatedly discussed them with his broker during the entire time he was involved with defendant.

Plaintiff should have seen it coming.

While plaintiff was on defendant's premises to vote in a school budget election, she allegedly fell and was injured when she failed to note the single step in a hallway leading to the gymnasium, where the voting was taking place. Plaintiff acknowledged that she had been looking at a sign on the wall just before approaching the step on which she tripped. The Second Department dismissed the complaint, in Groon v. Herricks Union Free School District, which was decided on July 10, 2007. Noting that a landowner has no duty to protect or warn against conditions which are readily observable by the reasonable use of one's senses, the court found evidence in the record, including photographs taken by the plaintiff's daughter shortly after the accident, revealing that a yellow line had been painted across the top of the step to alert passersby of the height differential, and that, adjacent to the step, there was a short ramp, allowing passersby to circumvent the step altogether.

In New York the standard is Frye.

When plaintiff was admitted to the hospital after having had a stroke, it was discovered that she had bradycardia, which is a heart rate of fewer than 60 beats per minute. Her treating physicians were convinced that the bradycardia had caused the stroke, and that it could have been prevented had a pacemaker been inserted within the previous year. The First Department dismissed the subsequent medical malpractice action, in Marso v. Novak, which was decided on July 19, 2007. Noting that plaintiff's own causation-expert testified that it is not generally accepted in the scientific community that bradycardia is a risk factor for the type of stroke plaintiff suffered, the court found that New York's Frye standard was not satisfied. The court specifically rejected plaintiff's argument that, because all other possible causes had been eliminated by testing, Frye was not implicated.

CPLR 208's insanity toll does not terminate on the appointment of a guardian, according to the First Department, in Giannicos v. Bellevue Hospital Med. Ctr., which was decided on July 19, 2007. This medical malpractice action had been tolled after a Special Referee found that the incapacitated plaintiff was unable to protect his legal rights because of an overall inability to function as the result of a stroke.

Out of sight but not off the hook.

Plaintiff-tenant was injured when she was struck by her store's roll-up security gate which, over time, had become detached from the building. The First Department denied the out-of-possession landlord's motion for summary judgment, in Hakim v. 65 Eighth Avenue, which was decided on July 19, 2007. The court noted that the damage to the security gate was allegedly caused by prolonged water exposure from a leaking roof, and that, by the terms of the lease, the landlord was responsible for repairs to both the structure and the roof.

After defendant was terminated in the wake of a scandal involving his work-unit, he sued his employer for damages, alleging that his employer had made defamatory statements blaming him for the problem.

Defendant's retainer agreement with plaintiff put a one-million dollar cap on plaintiff's hourly fees, and also allowed for a 10% "Success Fee" on eligible amounts recovered between one-million and ten-million dollars, subject to the following limitation: "The Success Fee will be computed only on amounts in excess of current vested entitlements, or entitlements to be vested by January 2006."

Defendant and his employer eventually settled, and defendant received, among other things, a five-million dollar cash payment. The First Department determined that plaintiff is entitled to a success fee based on that payment, in Kaplan v. Jones, which was decided on July 19, 2007.

Characterizing the success fee-language as unambiguous, the court categorically rejected defendant's argument that the word "entitlements" refers to any compensation defendant would have received had his employment not been terminated, and that, since he would have been compensated more than five-million dollars had he not been fired, no success fee was owing.

Their number's up.

Defendant-newspaper published a string of numbers which participants in its "Scratch n' Match" daily game were to scratch off on their game cards, potentially revealing prizes up to the sum of $100,000. The game's official rules were printed on the reverse side of each game card. The following day, the newspaper published a notice saying that the numbers had been mistaken. Relying on the incorrect numbers, though, several participants claimed to have won the $100,000 prize.

Pursuant to the contest's rules, the newspaper then conducted a random drawing from among those claimants to determine the actual winner. The Second Department dismissed the losers' suit, in Sargent v. New York Daily News, which was decided on July 17, 2007.

The court noted that the rules contained a provision stating, "[i]f due to a printing, production or other error, more prizes are claimed than are intended to be awarded for any prize level per the above, the intended prizes will be awarded in a random drawing from among all verified and validated prize claims received for that prize level." The rules also provided that, "[i]n no event will more than the stated number of prizes be awarded." The rules set forth how many prizes at each prize level would be awarded each week, and specified that there was to be one $100,000 prize awarded weekly. The rules further provided that "[i]n the event of printing, production or other error, or the distribution of an irregular game card occurs," the newspaper would not be liable. Finally, the rules specified that participants agreed to be bound by the official rules.

The court cited hornbook law that contest rules constitute a contract offer and that a participant's entry into the contest constitutes an acceptance of that offer, including all of its terms and conditions.

The building owner's getting off here.

Plaintiff was injured when, just after the doors closed, an elevator suddenly fell four floors. The First Department dismissed the complaint as against the building's owner, in Hodges v. Royal Realty Corp., which was decided on July 12, 2007.

The court noted that the doctrine of res ipsa loquitur may be invoked in an action involving a malfunctioning elevator, but only if it can be established that (1) the elevator's sudden fall would not ordinarily occur absent negligence; (2) when the elevator fell, it was within the defendant's exclusive control; and (3) plaintiff did not contribute to the elevator's fall in any way.

Here, the court found that the owner did not have exclusive control of the elevator. The court pointed to a service contract which required defendant-elevator company to maintain the elevators in a proper and safe operating condition, perform periodic inspections, repair all defects and provide on site a full-time elevator mechanic whose sole responsibility was to care for and maintain the building's elevators.