Hospital liability and private physicians.

Practice point: A hospital is ordinarily not liable for the acts of a private attending physician unless a patient, in accepting treatment by the private physician, relies upon the fact that the physician's services are provided by the physician as the hospital's apparent agent, such as where the patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing.

Student note: Where apparent agency is established as a predicate for holding the hospital responsible for the alleged malpractice, liability is contingent upon the plaintiff having a viable claim against the treating physician.

Case: Polgano v. Christakos, NY Slip Op 01615 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Compensation for pain and suffering.

Correcting a mistaken order.

Practice point: Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based.

Student note: A trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment.

Case: JSO Assoc., Inc. v. Price, NY Slip Op 01532 ((2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Hospital liability and private physicians.

A notary public's misconduct.

Practice point: Executive Law § 135 provides, in pertinent part, that "[f]or any misconduct by a notary public in the performance of any of his powers such notary public shall be liable to the parties injured for all damages sustained by them."

Student note: By its plain language, the statute does not require a showing of detrimental reliance. A plaintiff seeking to recover under that section need only show that the notary engaged in notarial misconduct and that such misconduct was a proximate cause of the plaintiff's injury.

Case: Chicago Tit. Ins. Co. v LaPierre, NY Slip Op 01523 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Correcting a mistaken order.

Res ipsa.

Practice point: Plaintiff, an employee of Keyspan/National Grid, allegedly was injured when the staircase leading to the basement of defendant's house collapsed as he was walking down the stairs to replace the water heater. The Appellate Division determined that plaintiff failed to establish prima facie entitlement to judgment as a matter of law. Since the staircase was constructed prior to defendant's ownership, and defendant did not make any alterations or repair to it, plaintiff did not satisfy the second prong of the doctrine of res ipsa loquitur, which requires proof of the defendant's exclusive control. Given that plaintiff's own expert opined that the accident occurred either due to negligent construction or negligent maintenance, plaintiff did not establish, by sufficiently convincing circumstantial proof, that the inference of defendant's negligence is inescapable.

Student note: A plaintiff must establish the following in order for the doctrine to apply: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

Case: Bunting v, Haynes, NY Slip Op 01521 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:A notary public's misconduct.

Summary judgment in a medical malpractice action, and a hospital's vicarious liability.

Practice point: Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such conflicting opinions will raise credibility issues which can only be resolved by a jury.

Student note: A hospital cannot be held concurrently liable with such a physician unless its employees commit independent acts of negligence or the attending physician's orders are contraindicated by normal practice.

Case: Aronov v. Souklary, NY Slip Op 01364 (2d Dept. 2013).

Here is the decision.

Monday's issue:Res ispa.

Striking a pleading, and an inquest on damages.

Practice point: The Appellate Division found that the Supreme Court providently exercised its discretion in striking plaintiff's pleadings, given plaintiff's intentional and unexcused failure to comply with more than three orders, some of them stipulated to by plaintiff, to produce documents relevant to the case, pursuant to CPLR 3126.

Student note: However, as an appearing party whose pleadings were stricken, plaintiff was entitled to five days notice of the inquest, pursuant to CPLR 3215[g]. The failure to give such notice requires a new inquest, on proper notice.

Case: Walker v. Foreman, NY Slip Op 01494 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Summary judgment in a medical malpractice action, and a hospital's vicarious liability.

Marital property and maintenance awards.

Practice point: The trial court is vested with broad discretion in making an equitable distribution of marital property, and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed.

Student note:The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting. The mere fact, however, that a party has the ability to become self-supporting in no way obviates the need for the trial court to consider the pre-divorce standard of living in determining the amount and duration of maintenance, pursuant to Domestic Relations Law § 236[B].

Case: Bloom v. Petryk-Bloom, NY Slip Op 01367(2d Dept. 2013).

Here is the decision.

Tomorrow's issue:Striking a pleading, and an inquest on damages.

A fall down the stairs.

Practice point: Plaintiff was injured when he fell down a flight of stairs that led to the restroom area in defendants' restaurant. Plaintiff testified that his left heel hit the top step whereupon he lost consciousness and fell. He further testified that when he regained consciousness, he found himself lying at the bottom of the staircase. On the basis of that testimony, the Appellate Division found that none of the stairway's alleged structural or design defects could have been a proximate cause of the accident.

Student note: Plaintiff alleged that the staircase was "inadequately lighted and/or not otherwise properly demarcated/warned about." In denying the motion, the Supreme Court found an issue of fact as to whether the staircase was totally camouflaged, creating a defective condition. The Appellate Division found that this was error, inasmuch as the deposition of the restaurant's general manager is unrefuted insofar as it establishes adequate warning as a matter of law. Specifically, the general manager testified that at the top of the staircase there was a yellow sign with an image of a finger pointing downward which read "bathroom this way" and "watch your step." The general manager also testified about a red non-slip mat on the landing, a spotlight at the top of the staircase as well as another light fixture above the middle of the staircase. Accordingly, defendants established, prima facie, that the staircase was neither inherently dangerous nor constituted a hidden trap

The affidavit of plaintiffs' safety expert does not reference the signs or otherwise state why they were inadequate. Accordingly, plaintiff's mere assertion that he did not see the signs is insufficient to raise an issue of fact as to their adequacy.

Case: Sato v. Ippudo, NY Slip Op 01460 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Marital property and maintenance awards.

Default judgments.

Practice point:  CPLR 3215(c) requires that a plaintiff commence proceedings for the entry of a default judgment within one year after the default or demonstrate sufficient cause why the complaint should not be dismissed.

Student note:  Where the plaintiff has made an application to the court for the entry of a default judgment within one year of the defendant's default, the court may not later dismiss the complaint as abandoned.

Case:  Jones v. Fuentes, NY Slip Op 01239 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:A fall down the stairs.

Suing after termination.

Practice point:  The Appellate Division found that defendants' policy that the payment of bonuses was entirely discretionary was clearly expressed in the offer letter to plaintiff, in the company handbook, and in a memorandum confirming plaintiff's 2010 bonus, and plaintiff acknowledged in writing that she understood the policy. As a result, none of plaintiff's bonus-based claims — the causes of action for breach of an oral contract, quantum meruit/unjust enrichment, promissory estoppel, violation of Labor Law § 193, and fraud — were viable.

 Student note: Plaintiff's severance-related breach of contract claims were premised upon defendants' alleged promise to pay plaintiff a severance package "consistent with the severance packages paid to" other "senior executives who were terminated." The Appellate Division found that this alleged promise is too indefinite to be given effect.

Case: DeMadariaga v. Union Bancaire Privee, NY Slip Op 01326 (1st Dept. 2013).

Here is the decision.

Monday's issue: Default judgments.

Pleading fraud with particularity.

Practice point: All of the elements of a fraud claim must be supported by factual allegations containing the details constituting the wrong in order to satisfy the pleading requirements of CPLR 3016(b). The purpose of this pleading requirement is to inform a defendant of the complained-of incidents.

Student note: It may be virtually impossible to state in detail the circumstances constituting a fraud where those circumstances are peculiarly within the knowledge of an adverse party. Under such circumstances, the heightened pleading requirements of CPLR 3016(b) may be met when the material facts alleged in the complaint are sufficient to permit a reasonable inference of the alleged conduct, including the adverse party's knowledge of, or participation in, the fraudulent scheme.

Case: House of Spices (India), Inc. v. SMJ Servs., Inc., NY Slip Op 01236(2d Dept. 2013).

 Here is the decision.

Tomorrow's issue: Suing after termination.