Torts.

Practice point: An action to recover for personal injury or wrongful death against a doctor or hospital may be based either on simple negligence principles or on the narrower medical malpractice standard.

Practitioners should note that negligence principles apply where the alleged act may be determined by the fact-trier based on common knowledge. Where the issue involves directions given or treatment administered, consideration must be given to the professional skill and judgment of the practitioner or facility, and medical malpractice principles apply.

Case: Friedmann v. New York Hospital-Cornell Med. Ctr., NY Slip Op 06362 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Products liability.

Contracts.

Practice point: The rule of accord and satisfaction is generally accepted as a legitimate and expeditious means of settling contract disputes.

Practitioners should note that the affirmative defense requires a disputed claim that the parties resolved through a new contract discharging their obligations under the original contract.

Case: Profex, Inc. v. Town of Fishkill, NY Slip Op 06320 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Municipalities Law.

Practice point: Under Highway Law § 139(2), a county may not be subjected to liability for injuries caused by an improperly maintained highway unless (1) it has received prior written notice of the defect, or (2) a statutory exception to the notice requirement applies.

Practitioners should note that, as a matter of law, constructive notice of a defect, except in the case of snow and ice, is an exception to the prior written notice requirement.

Case: Napolitano v. Suffolk County Dept. of Pub. Works, NY Slip Op 06319 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.

Remedies.

A plaintiff is not precluded from maintaining an action simply because plaintiff received payment from its insurance carrier.

Practitioners should note that plaintiff's receipt of an insurance payment may be relevant as a possible setoff against the damages award, pursuant to CPLR 4545[c].

Case: Hopper v. McCollum, NY Slip Op 06315 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

Motion practice.

Practice point: The filing of a supplemental summons and complaint commences an action against a newly-joined defendant or a third-party defendant, pursuant to CPLR 305[a].

Practitioners should note that a claim asserted against a defendant in an amended filing may relate back to claims previously asserted against a codefendant for statute of limitations purposes where the two defendants are united in interest, pursuant to CPLR 203[c].

Case: Benn v. Losquadro Ice Co., Inc., NY Slip Op 06307 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Remedies.

Municipalities Law.

Practice point: The markings on a Big Apple map must give notice of the particular defect that allegedly caused the injury. Markings showing a sidewalk crack do not give notice of a hole at the end of that crack.

Practitioners should note that, on a motion for summary judgment, where the City establishes that it lacked prior written notice, the burden shifts to plaintiff to demonstrate the applicability of one of two recognized exceptions to the requirement of written notice: (1) that the municipality affirmatively created the defect through an act of negligence, or (2) that a special use resulted in a special benefit to the municipality.

Case: Ortiz v. City of New York, NY Slip Op 06299 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: Where there is an inconsistency between an order and the decision on which it is based, the decision controls.

Practitioners should note that the order is not rendered a nullity by this inconsistency unless it affects a substantial right of a party, pursuant to CPLR 5019[a].

Case: Matter of Stewart, NY Slip Op 06254 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Municipalities Law.

Motion practice.

Practice point: On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, give plaintiff the benefit of every possible favorable inference, and determine only whether the allegations fit within any cognizable legal theory.

Practitioners should note that while affidavits may be considered, if the motion has not been converted to a CPLR 3212 motion for summary judgment, affidavits are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims.

Case: Mathurin v. Lost & Found Recovery, LLC, NY Slip Op 06240 (2d Dept. 2009)

The opinion is here.

Tuesday’s issue: Motion practice.

Torts.

Practice point: To demonstrate a lack of informed consent, a plaintiff must establish (1) that defendant failed to disclose the material risks, benefits and alternatives to the surgery which a reasonable medical practitioner would have disclosed, and (2) that a reasonably prudent person in plaintiff's position would not have undergone the surgery if he or she had been fully informed, pursuant to Public Health Law § 2805-d[1], [3].

Practitioners should note that informed consent does not require disclosure of the qualifications of personnel providing the professional treatment, pursuant to Public Health Law § 2805-d.

Case: Johnson v. Jacobwitz, NY Slip Op 06236 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Property.

Practice point: Partition is an equitable remedy and Supreme Court has the authority to adjust the parties’ rights so that each receives the proper share of the property and its benefits.

Practitioners should note that a tenant’s expenditures in excess
of tenant’s obligations may be charged against the cotenant’s interest. These expenditures include down payments and mortgage payments.

Case: Brady v. Varrone, NY Slip Op 06228 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Municipalities Law.

Practice point: As a general rule, a municipal defendant is immune from liability for conduct involving the exercise of discretion and reasoned judgment.

Practitioners should note that the judgment error rule does not immunize municipal defendants when an innocent bystander is injured by a police officer’s action in an altercation involving a violation of department guidelines governing the use of deadly force.

Case: Johnson v. City of New York, NY Slip Op 06225 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Property.