Court holiday.

The courts are closed to mark Christmas Day.

A safe, happy, and blessed holiday to you all.

Tomorrow's issue: Hospital's liability for acts of a private attending physician.

Cross motions for summary judgment.

Practice point: Generally, a cross motion for summary judgment made more than 120 days after the filing of a note of issue may be considered on its merits if another party has made a timely, pending motion on nearly identical grounds.

 Student note: Here, however, the cross motion was not responsive to a timely, pending motion for summary judgment and, therefore, the Supreme Court was without authority to consider it on its merits.

Case: Bicounty Brokerage Corp. v. Burlington Ins. Co., NY Slip Op 08472 (2d Dept. 2012).

Here is the decision.

Wednesday’s issue: Hospital’s liability for acts of a private attending physician.

Failure to file a note of issue.

Practice point: While the failure to comply with a court order to file a note of issue may provide the basis for dismissal under CPLR 3216, courts may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal are met.

Student note: A 90-day demand to file a note of issue is one of the statutory preconditions, pursuant to CPLR 3216[b][3].

Case: Alii v. Baijnath, NY Slip Op 08469 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Cross motions for summary judgment.

Workers' Compensation Law.

Practice point: The receipt of workers' compensation benefits is the exclusive remedy that a worker may obtain against an employer for losses suffered as a result of an injury sustained in the course of employment.

Student note: A person may be deemed to have more than one employer for purposes of the Workers' Compensation Law, a general employer and a special employer. Moreover, where facts demonstrate the plaintiff's dual employment status, whether the relationship between two corporate entities is that of joint venturers, parent and subsidiary, corporate affiliates, or general and special employers, immunity will be extended to all the plaintiff's employers.

Case: Alfonso v. Pacific Classon Realty, LLC, NY Slip Op 08468 ((2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Failure to file a note of issue.

Vacating a default, and law office failure.

Practice point: In order to vacate the default in answering the complaint, the defendant is required to demonstrate a reasonable excuse for the failure to serve an answer and a potentially meritorious defense, pursuant to CPLR 5015[a].

Student note:  While the Supreme Court has the discretion to accept law office failure as a reasonable excuse, the excuse must be supported by detailed allegations of fact explaining the failure.

Case: HSBC Bank USA v. Wider, NY Slip Op 08285 (2d Dept. 2012).

Here is the decision 

Tomorrow’s issue: Workers’ Compensation Law.

Expert testimony.

Practice point: Expert testimony is unnecessary unless it assists the jury in clarifying an issue which requires professional or technical knowledge possessed by an expert and beyond the comprehension of a typical juror.

Student note: The admissibility and scope of expert testimony is a determination within the discretion of the trial court.

Case: Galasso v. 400 Exec. Blvd., LLC, NY Slip Op 08282 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Vacating a default, and law office failure.

Motion for judgment as a matter of law.

Practice point: To succeed on a motion for judgment as a matter of law, pursuant to CPLR 4401, a defendant has the burden of showing that there is no rational process by which the jury could find in favor of the plaintiff and against the moving defendant.

Student note: In determining whether the defendant has met this burden, a court must accept the plaintiff's evidence as true and accord the plaintiff the benefit of every reasonable inference which can reasonably be drawn from the evidence presented at trial.

Case: Figueroa v. City of New York, NY Slip Op 08279 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Expert testimony.

Arbitration clauses.

Practice point: Defendants did not waive the right to arbitrate by merely serving 
an answer and opposing plaintiff's motion.

Student note: The issue of whether an anti-dissolution provision in an LLC's operating agreement violates public policy does not fall into any of the categories of matters that cannot be arbitrated.

Case: SSM Realty Group, LLC v. 20 Sherman Assoc., LLC, NY Slip Op 08408 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Motion for judgment as a matter of law.

Pleading fraud with particularity, and punitive damages.

Practice point: While plaintiffs' claim that defendants used the contract as a cover for a fraudulent billing scheme stated a fraud claim separate from the contract claim, plaintiffs failed to specify which invoices are inflated. Therefore, the claim lacked the particularity required by CPLR 3016. However, plaintiffs were given leave to replead this part of their complaint, since the claim is otherwise meritorious on its face.

Student note: Plaintiffs' allegations of a run-of-the-mill commercial dispute, involving only these parties, does not rise to the standard necessary to recover punitive damages.

Case: Lax v. Design Quest N.Y. Ltd., N.Y. Slip Op 08406 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Arbitration clauses.

Res judicata and collateral estoppel.

Practice point: The claim in the wrongful death action at issue here did not arise from the same or related transactions as the claim in the Surrogate's Court turnover proceeding. Thus, the remaining claim for conscious pain and suffering in the wrongful death action is not barred by the principle of res judicata. 

Student note: Similarly, that remaining claim is not barred by the principle of collateral estoppel because the issues raised in the claim were not addressed, either in theory or in fact, in the Surrogate's Court proceeding.

Case: Lind v. Greenspan, NY Slip Op 08404 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Pleading fraud with particularity, and punitive damages.

Easements by prescription.

Practice point: An easement by prescription is demonstrated by proof of the adverse, open and notorious, and continuous use of the subject property for the prescriptive period.

Student note: Where the plaintiff demonstrates, by clear and convincing evidence, the open and notorious, continuous, and undisputed use of the subject property, it is presumed that the use was adverse, and the burden shifts to the opponent of the alleged prescriptive easement to show that the use was permissive.

Case: Ducasse v. D’Alonzo, NY Slip Op 08090 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Res judicata and collateral estoppel.