Plaintiff's house was damaged when its concrete slab foundation settled, sank, and cracked. Defendant disclaimed coverage for the damage, relying on terms of the insurance policy which, in pertinent part, excluded losses due to "earth movement, sinking, rising or shifting" and due to the "settling, shrinking, bulging or expansion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings."

The Second Department found for the insurer, in Cali v. Merrimack Mut. Fire Ins. Co., which was decided on August 14, 2007. Pointing to the plain meaning of the policy's language, the court said it had no choice but to conclude that there was no coverage for damages resulting from earth movement, even when the cause of the earth movement is a covered peril.

In a proceeding to compel an estate accounting, the Second Department determined that, pursuant to a Merger, Dissolution and Distribution Agreement, petitioner was obligated to contribute to a partnership debt, based on his pro rata ownership interest as a limited partner, in Matter of Page, which was decided on August 7, 2007.

The court noted that paragraph 9 of the Agreement specifically provided that, among other things, "[a]ny shortfall in the cash needs for the closing of the transaction set forth herein shall be paid by the undersigned individuals pro-rata according to their interests in the legal entities."

The court concluded that, while the subject of that paragraph included legal and accounting fees, the plain meaning of the writing in no way limited its application to such fees, as petitioner had urged.

After plaintiff commenced a medical malpractice action, neither the hospital-defendant nor the individual-defendant appeared. However, plaintiff failed to move for leave to enter a default judgment within one year of the default, pursuant to CPLR 3215(c), and the Second Department dismissed the complaint as abandoned, in Durr v. New York Community Hosp., which was decided on August 7, 2007. The court found that plaintiff had failed to make the requisite showing of (1) a reasonable excuse for its delay in seeking a default judgment and (2) a meritorious cause of action.

The Second Department granted leave to serve a late notice of claim based on (1) evidence that plaintiffs' decedent had a reasonable excuse for his failure to serve the notice timely, (2) medical records indicating that the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) evidence of an absence of prejudice resulting from the delay, in Difuentes v. New York City Health & Hosps. Corp., which was decided on August 7, 2007.

The court noted that plaintiffs' decedent's delay was attributable to the fact that he did not learn that his cancer had recurred until five months after defendants' treatment of him had ended. Thereafter, he suffered a recurring debilitating illness, and, what is more, had difficulty in retaining counsel. Importantly, the court also said that there is actual knowledge of the facts constituting the claim when, as here, medical records suggest an injury attributable to malpractice.

The First Department upheld the termination of a probationary police officer, in Matter of Duncan v. Kelly, which was decided on August 9, 2007. The court rejected the argument that the firing was improperly based on pre-hiring conduct, over which the Department of Citywide Administrative Services would have exclusive authority. Instead, the court said that petitioner's post-hiring conduct provided ample basis for his termination, inasmuch as he had made false and misleading statements to Internal Affairs concerning a crime in which he was allegedly involved prior to his employment.

The court noted that the investigation absolved the ex-officer of two other crimes, and that substantial deference must be given to the investigatory findings, which were reviewed at a number of levels, up to and including the Police Commissioner.

There was a lengthy and virogous dissent which argued that the department had fabricated a post-hiring reason for termination which was based on pre-hiring conduct by "summarily deeming" the ex-officer's statements to Internal Affairs to be lies.

In February 2002, plaintiff's decedent underwent a kidney transplant procedure, with a replacement cadaveric kidney supplied by defendant. Four and a half weeks later, a kidney biopsy revealed lesions in the new kidney. After several treatments to the implanted kidney, it was determined that it had been rejected and needed to be removed. The pathology report of the donor kidney showed extensive tumor infiltration, which a consulting physician determined to be evidence of lymphoma. Decedent died on September 19, 2002.

Plaintiff filed suit on September 20, 2004, and defendant moved to dismiss the complaint as barred by the 2½ year statute of limitations for medical malpractice actions (CPLR 214-a). The First Department denied the motion, in Rodriguez v. Saal, which was decided on August 2, 2007.

The court noted that when a complaint does not allege negligence in furnishing medical treatment to a patient, but, rather, the failure of a medical provider in fulfilling a different duty, the claim sounds in negligence. With this defendant, at issue are not questions of medical competence or treatment, but defendant's duties as a collection and distribution center of donated organs. Simply put, the issue to be resolved is whether defendant breached its duty to exercise due care in its organ collection activities.

The First Department vacated a compliance conference order directing defendants to provide plaintiff with all documents of similar incidents for the three years prior to the accident at issue, in Daniels v. Fairfield Presidential Mgt. Corp., which was decided on August 7, 2007. The court said that the directive was overly broad, and that the requested documents were neither material nor necessary to the prosecution of the action. "Discovery of evidence of prior similar accidents, while material in cases where a defect is alleged in the design or creation of a product or structure, is irrelevant and inappropriate in cases such as this, where no inherent defect is alleged."

Plaintiff, who alleged an injury while skiing, claimed that defendants had improperly set the skis' bindings so that they did not release during her fall. Two weeks before trial, defendants served plaintiff with expert witness information pursuant to CPLR 3101(d). This information included the report of an expert who opined that the alleged failure of the bindings to release could not have caused plaintiff's injury. Instead of seeking an adjournment of the trial, plaintiff moved to preclude defendants' expert from testifying. The motion was denied, and, at trial, the jury found that, while defendants were negligent, their negligence was not a substantial factor in causing plaintiff's injury.

The Second Department found that plaintiff's motion to preclude had properly been denied, in Rowan v. Cross County Ski & Skate, Inc., which was decided on July 31, 2007. The court said that CPLR 3101(d)(1)(i) does not require a party to respond to a demand for expert witness information at any specific time, nor does it mandate that a party be precluded from oferring expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party. The court found nothing in the record to support a conclusion that defendants' delay in retaining their expert or in serving their expert information was intentional or willful. Furthermore, disclosure of the expert information was not made on the eve of trial since plaintiff had two weeks within which to review the material prior to the trial date. Moreover, said the court, any potential prejudice to the plaintiffs could have been eliminated by an adjournment.

The First Department dismissed a legal malpractice complaint arising out of a matrimonial action, in Fleming v. Vassallo, which was decided on August 2, 2007. Plaintiff had alleged that defendant directed her, over her objection, to reject a purported settlement offer from her former husband, and that, after years of costly litigation, she received far less than he had originally offered.

On the record, though, the court found evidence that no concrete settlement offer was made between March 1987, when the divorce action was commenced, and October 1987, when defendant was retained as counsel. Indeed, there was no evidence that there had ever been even a preliminary agreement as to the financial terms of a settlement.

Therefore, said the court, plaintiff had no cognizable claim that defendant committed malpractice by pressing forward with the litigation. The court added that it found no evidence that defendant was in any way responsible for the fact that the matrimonial action was ultimately resolved in a manner that was not to plaintiff's liking. To the contrary, the evidence showed that the disposition of the economic issues was dictated by the reduced financial circumstances of plaintiff's then-husband, and not by any mishandling of the matter by defendant.

Finding improper service pursuant to CPLR 308(4), the Second Department dismissed the complaint as against the individual defendant in a medical malpractice action, in Abajian v. St. Francis Hosp., which was decided on July 31, 2007. The summons and complaint were affixed to the door of defendant's prior residence and not to his actual place of business, dwelling place or usual place of abode. Moreover, the attempts to serve the appellant pursuant to CPLR 308(1) and 308(2) prior to the employment of the "affix and mail" method of service did not satisfy the statutory requirement of "due diligence."

The First Department vacated an earlier judgment dismissing the action for failure to prosecute, in Feders v. Lamprecht, which was decided on August 2, 2007. The court found no intention to abandon the action, and defendants alleged no prejudice as a result of the delay. The motion court's sua sponte dismissal was based on plaintiff's counsel's failure to appear at a discovery compliance conference (22 NYCRR 202.27[b]), which apparently was the first such conference scheduled, and which was plaintiff's only default. However, plaintiff submitted evidence that counsel's absence from the conference was the result of injuries suffered in an automobile accident several weeks before the conference date, and defense counsel had been so advised. The court found that this was a reasonable excuse for the default. The court also found that any delay in prosecuting was minimal, given that only 11 months had elapsed between filing of the action and dismissal, and only 41 days from joinder of issue to dismissal. Furthermore, plaintiff promptly sought vacatur.

The court also said that the motion court's dismissal violated the provisions of CPLR 3216(b). Specifically, the record shows that two of the conditions necessary for dismissal were not met: passage of one year since joinder of issue (CPLR 3216[b][2]), and service of a written demand on plaintiff to resume prosecution and to serve and file a note of issue within 90 days of receipt of the demand (CPLR 3216[b][3]).