Violation of medical privacy.

Practice point: The claim was dismissed because defendants are neither physicians nor employees of a nursing home or a facility providing health-related services.

Student note: The Health Insurance Portability and Accountability Act and its regulations do not create a private right of action.

Case: Romanello v. Intesa Sanpaolo S.p.A., NY Slip Op 05595 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Jurisdiction.

Badminton injury.

Practice point: Defendant's motion for summary judgment dismissing the complaint was granted. At his deposition, the infant plaintiff described the activity as trying to spike the shuttlecock to a place away from the other player, in order to score points. This testimony established that the plaintiff was struck by an errant shot. The defendant established that it properly supervised the plaintiff, but, regardless, the plaintiff was injured by an errant shot of the shuttlecock that occurred in such a short period of time that any alleged lack of supervision was not a proximate cause of the injuries.

Student note: Plaintiff's expert’s affidavit submitted in opposition to the motion was insufficient to raise a triable issue of fact as to whether the defendant was negligent in failing to provide the plaintiff with protective eye gear, as there was no evidence to show that a recommendation to use such gear reflected a generally accepted standard or practice in high school.

Case: Gibbons v. Pine Bush Cent. Sch. Dist., NY Slip Op 05612 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Violation of medical privacy.

Duty to warn, and wheel stops.

Practice point: Although a landowner has a duty to maintain its premises in a reasonably safe manner, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous.

Student note: Generally, a wheel stop which is clearly visible presents no unreasonable risk of harm and, thus, is not inherently dangerous. The defendants made a prima facie showing that the wheel stop over which the plaintiff tripped, which was painted yellow in contrast to the color of the sidewalk to which it was affixed, was not an inherently dangerous condition, and was readily observable to those employing the reasonable use of their senses and, thus, open and obvious.

Case: Gallo v. Hempstead Turnpike, LLC, NY Slip Op 05611 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Badminton injury.

Discovery, and medical condition.

Practice point: There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by a party, pursuant to CPLR 3101[a][1]. The words “material and necessary” are to be interpreted liberally to require disclosure, if demanded, of any facts bearing on the controversy, if they will assist preparation for trial by sharpening the issues and reducing delay.

Student note: Where the mental or physical condition of a party is in controversy, a notice may be served pursuant to CPLR 3121(a) requiring that the party submit to a medical examination, or make available for inspection relevant hospital and medical records. The initial burden of proving that a party's medical condition is in controversy is on the party seeking the information, and it is only after such an evidentiary showing that discovery may proceed.

Case: Farkas v. Orange Regional Med. Ctr., NY Slip Op 05610 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Duty to warn, and wheel stops.

Vacating a default, and compelling defendant to accept a late answer.

Practice point: The court denied that branch of plaintiff's motion which was for leave to enter a judgment against defendant, upon its default in appearing or answering, and in granting defendant’s cross-motion to vacate  its default and to compel plaintiff to accept its late answer. While defendant had promptly sought an extension of time to answer, plaintiff ignored this request and instead moved for leave to enter a judgment against defendant. Thereafter, less than two months after its time to answer had expired, defendant served an answer. The court found that defendant acted diligently and never intended to abandon its defense or counterclaim.

Student note: In light of the lack of prejudice to plaintiff resulting from the short delay in serving an answer, the lack of willfulness on the defendant’s part, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, that branch of plaintiff's motion which was for leave to enter judgment on the issue of liability against defendant was providently denied, pursuant to CPLR 2004. Defendant's cross motion to compel plaintiff to accept its late answer was providently granted, pursuant to CPLR 3012 [d].

Case: Arias v. First Presbyt. Church in Jamaica, NY Slip 05606 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Discovery, and medical condition.

Employment discrimination based on disability.

Practice point: To state a prima facie case, a plaintiff must demonstrate that he or she suffered from a disability and that the disability caused the behavior for which he or she was terminated. Once a plaintiff establishes a prima facie case, the burden shifts to the employer, to show that the disability prevented plaintiff from performing the duties of the job in a reasonable manner, or that the employee's termination was motivated by a legitimate nondiscriminatory reason.

Student note: A reasonable accommodation is an action which permits an employee with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held,  provided, however, that such actions do not impose an undue hardship on the business, pursuant to Executive Law § 292 [21-e]. Under the City's Human Rights Law, an employer shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job, pursuant to Administrative Code § 8-107 [15][a]. An employer is not required to find another job for the employee, create a new job, or create a light-duty version of the current job.

Case: Jacobsen v. New York City Health and Hosps. Corp., NY Slip Op 05478 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Vacating a default, and compelling defendant to accept a late answer.

Defective products.

Practice point: A manufacturer may be held liable when its product contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warnings for the use of the product. A defectively designed product is one that is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use.

Student note: To recover for injuries caused by a defective product, the defect must have been a substantial factor in causing the injury, and the product must have been used for the purpose and in the manner normally intended or in a manner reasonably foreseeable.

Case: Hartnett v. Chanel, Inc., NY Slip Op 05477 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Employment discrimination based on disability.

Making out a defamation claim.

Practice point: Since falsity is a necessary element of the cause of action, and only facts are capable of being proven false, only statements alleging facts can properly be the subject of a defamation action.

Student note: In distinguishing between facts and opinion, the court must consider (1) whether the specific language has a precise meaning that is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact. The dispositive inquiry is whether a reasonable reader could have concluded that the statements were conveying facts about the plaintiff.

Case: Russell v. Davies, NY Slip Op 05507 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Defective products.

Disclosing a cause of action as an asset in a bankruptcy proceeding.

Practice point: The failure to disclose a cause of action as an asset in a prior bankruptcy proceeding, when the party knew or should have known it existed at the time of that proceeding, deprives that party of the legal capacity to sue subsequently on that cause of action.

Student note: The fact that the bankruptcy petition was later dismissed does not change this result.

Case: Potruch & Daab, LLC v. Abraham, NY Slip Op 05505 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Making out a defamation claim.

Avoiding dismissal for failure to proceed.

Practice point: CPLR 3216 does not require, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on an unreasonable neglect to proceed. Although the statute prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever a plaintiff has shown a justifiable excuse for the delay and the existence of a potentially meritorious cause of action, such a dual showing is not strictly necessary in order for a plaintiff to escape dismissal.

Student note: Plaintiff’s failure to meet the deadline for filing the note of issue was excused  because there was only a three-day delay in filing, and the excuse of law office failure was reasonable. In addition, the defendants did not claim any prejudice, and there was no evidence of a pattern of persistent neglect and delay in prosecuting the action or of any intent to abandon the action.

Case: Gordon v. Ratner, NY Slip Op 05497 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Disclosing a cause of action as an asset in a bankruptcy proceeding.

Correcting a mistake in assembling a pleading.

Practice point: The Supreme Court properly considered the defendant’s motion for summary judgment on the merits. In his initial moving papers, rather than annexing his answer as an exhibit, he inadvertently annexed the answer of one of the codefendants. This problem was rectified in the reply affirmation of his counsel, who annexed a copy of the correct pleading as an exhibit.

Student note: While CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced. Here, no substantial right of the plaintiff was prejudiced by the corrective inclusion of a copy of  the defendant’s answer with his reply affirmation, and the Supreme Court properly exercised its discretion to consider the motion in its merits.

Case:  Avalon Gardens Rehabilitation & Health Care Ctr., LLC v. Morsello, NY Slip Op 05485 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Avoiding dismissal for failure to proceed.