Leading questions, and assuming facts not in evidence.

Practice point: The Appellate Division found that plaintiff's counsel's questions were not leading because they did not suggest the answer that counsel wished the expert to give. Instead, they were merely calculated to draw the witness' mind to the subject of inquiry.

Student note: The questions did not assume facts not in evidence because they were based either upon facts testified to by the defendant herself or upon opinions previously expressed by the expert. The jury was entitled to accept or reject both the underlying facts and the underlying opinions upon which an answer to these questions would have been based.

Case: Heines v. Minkowitz, NY Slip Op 07273 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motions to withdraw as counsel.

Cashiers' checks.

Practice point: A cashier's check is the primary obligation of the issuing bank which, acting as both drawer and drawee, accepts the check upon its issuance.

Student note: Once a bank issues a cashier's check, it cannot thereafter stop payment, even upon a request from its customer, unless there is evidence of fraud, or evidence that the check was lost, stolen, or destroyed.

Case: Golden v. Citibank, N.A., NY Slip Op 07272 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Leading questions, and assuming facts not in evidence.

Fiduciary relationships, and a right to an accounting.

Practice point: A fiduciary relationship arises when one is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation. It is grounded in a higher level of trust than normally present in the marketplace between those involved in arm's-length business transactions., and so a conventional business relationship, without more, is insufficient. Rather, a plaintiff must make a showing of special circumstances that could have transformed the parties' business relationship to a fiduciary one, such as control by one party of the other for the good of the other.

Student note: The right to an accounting rests on the existence of a trust or fiduciary relationship regarding the subject matter of the controversy at issue.

Case: DiTolla v. Doral Dental IPA of N.Y., LLC, NY Slip Op 07266 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Cashier’s checks.

Motions for leave to renew.

Practice point: The motion must be based upon new facts not offered on the original motion that would change the prior determination, pursuant to CPLR 2221[e][2]. The new or additional facts either must have not been known to the party seeking renewal, or may, in the court’s discretion, be based on facts known to the party seeking renewal at the time of the original motion.

Student note: However, in either instance, a reasonable justification for the failure to present such facts on the original motion must be presented, pursuant to CPLR 2221[e][3].

Case: Deutsche Bank Trust Co. v. Ghaness, NY Slip Op 07265 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Fiduciary relationships, and a right to an accounting.

Medical malpractice, and experts' opinions.

Practice point: When a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered.

Student note: Even if the defendant-physician did depart from accepted practice, plaintiff cannot defeat summary judgment if the expert’s assertion that this departure proximately caused the plaintiff's injuries is purely speculative.

Case: Bey v. Neuman, NY Slip Op 07262 (2d Dept. 2012).

 Here is the decision.

Monday’s issue: Motions for leave to renew.

Court holiday.

The courts are closed to mark Thanksgiving Day.

Tomorrow's issue: Medical malpractice, and experts' opinions.

More than one proximate cause, and comparative fault.

Practice point: There can be more than one proximate cause of an accident.

Student note: Therefore, the proponent of a summary judgment motion has the burden of establishing freedom from comparative fault as a matter of law.

Case: Antaki v. Mateo, NY Slip Op 07261 (2d Dept. 2012).

Here is the decision.

Friday’s issue: Medical malpractice, and experts’ opinions.

Liability when a non-owner is driving.

Practice point: Proof of ownership of a motor vehicle creates a rebuttable presumption that the driver was using the vehicle with the owner's permission, express or implied.

Student note: A finding of constructive consent requires a consensual link between the negligent operator and one whose possession of the car was authorized.

Case: Fiduciary Ins. Co. of Am. v. Jackson, NY Slip Op 07200 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: More than one proximate cause, and comparative fault.

Collapsed ceiling, and late discovery demands.

Practice point: Plaintiff's complaints of the collapse of her bathroom ceiling and portions of her living room ceiling 15 months before the collapse of the living room ceiling raise an issue of fact whether defendants were on constructive notice of a defect. To the extent the record is ambiguous as to the cause of the ceiling collapse, there are issues of fact as to defendants' duty to inspect the ceilings and the applicability of the doctrine of res ipsa loquitur.

Student note: Since defendants did not disclose the existence of documents previously ordered produced, or the identity of a witness with knowledge until their deposition just before the note of issue was filed, plaintiff's last-minute renewed demand for this discovery was justified.

Case: Lisbey v. Pel Park Realty, NY Slip Op 07212 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Liability when a non-owner is driving.

Liability for injuries to a special employee.

Practice point: Plaintiff was employed as a contract travel nurse at the defendant-hospital, and, at the cafeteria during her assigned lunch-time, she slipped and fell while waiting in line to pay one of the cashiers.
A special employee is one who is transferred, for a limited time of whatever duration, to the service of another. When an employee is eligible to receive Workers' Compensation benefits from his general employer, a special employer is shielded from any action at law commenced by the employee, pursuant to Workers' Compensation Law § 29[6].

Student note: The key to the determination is a fact-intensive inquiry into who controls and directs the manner, details, and ultimate result of the employee's work.

Case: Warner v. Continuum Health Care Partners, Inc., NY Slip 07211 (1st Dept. 2012).

Monday’s issue: Collapsed ceiling, and late discovery demands.

Suing the Transit Authority.

Practice point:Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against the Transit Authority, pursuant to General Municipal Law § 50-e[1][a]; § 50-i[1][a], and Public Authorities Law § 1212[2]. In determining whether to extend the time to serve, the court will consider whether the public corporation received actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter; whether the claimant has a reasonable excuse for the failure to serve a timely notice; and whether the delay would substantially prejudice the public corporation in its defense on the merits.

Student note: Here, petitioner failed to demonstrate that the Transit Authority acquired actual knowledge of the essential facts constituting the claim within 90 days after the accident or within a reasonable time thereafter. Even though the petitioner consulted with an attorney and served a notice upon the City of New York approximately one week after the accident, he did not serve a notice upon the Transit Authority or commence this proceeding until more than four months after the consultation. The Transit Authority did not have any knowledge of the petitioner's accident and injury, or the legal theory on which liability was predicated against it prior to being served with papers in the instant proceeding. Furthermore, the petitioner failed to demonstrate a reasonable excuse for his delay. The petitioner's excuse that he only recently came to realize that he may have a claim against the Transit Authority was unacceptable. Finally, the petitioner failed to show that the delay had not deprived the Transit Authority of the opportunity to find witnesses promptly or otherwise conduct a timely and meaningful investigation in this matter.

Case: Abromovitz v. City of New York, NY Slip Op 07108 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Liability for injuries to a special employee.