A failed fraud claim.

Practice point:  Plaintiff's fraud claim failed because merely alleging that the breach of a contract duty arose from a lack of due care does not transform a simple breach of contract into a tort.

Student note:  An actionable fraud claim requires proof that the defendant made a misrepresentation of fact which was false and known to be false, and that the plaintiff reasonably or justifiably relied on that misrepresentation.

Case: Waterscape Resort LLC v. McGovern, NY Slip Op 04709 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: An erroneous jury charge in a falling object case.

Allegations of failure to diagnose and improper treatment.

Practice point:  As to the alleged failure to diagnose, defendant met his initial burden through the affirmed report of his expert who noted that decedent had no prior history of diabetes or elevated glucose during the previous year and a half he had been treated by defendant, and opined that defendant acted appropriately and within the standard of care in performing a focused clinical examination when decedent presented with a sore throat.  In opposition, plaintiffs' expert's opinion that defendant deviated from the standard of care relied on his statement that decedent presented with a history of symptoms, including polyuria and polydipsia. However, in the record there is no evidence that any such history was presented to defendant, but rather to a hospital two days later. To the extent plaintiffs' expert's opinion relied on facts and evidence not in the record, plaintiffs' theory was without the requisite expert or record support.

Student note: As to the alleged improper treatment during the hospital stay, a physician's general duty of care may be limited to those medical functions undertaken by the physician and relied upon by the patient. Defendant was entitled to rely on the treatment rendered in the hospital by specialists better equipped to handle the patient's condition.

Case:  Perez v. Edwards, NY Slip Op 04704 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A failed fraud claim.

The scope of discovery demands.

Practice point:  Although CPLR 3101(a) is to be construed liberally so that there should be disclosure of any evidence that is material, necessary and arguably relevant, unlimited disclosure is not required, and supervision of disclosure is generally left to the trial court's broad discretion. The test when determining discovery issues is one based on usefulness and reason.

Student note: The Supreme Court's determination as to discovery issues will not be disturbed on appeal unless improvidently made. However, discovery demands which are unduly burdensome, lack specificity, or seek privileged or irrelevant information are improper and will be vacated.

Case: H.R. Prince, Inc. v. Elite Envtl. Sys., Inc., NY Slip Op 04567 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Allegations of failure to diagnose and improper treatment.

Prior written notice laws.

Practice point:  Where a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries arising from a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies.

Student note:  The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality.

Case:  Avellino v. City of New York, NY Slip Op 04567 (2d Dept. 2013).

Here is the decision.

Monday's issue: The scope of discovery demands.

Successive motions in the absence of new evidence.

Practice point:  The court denied plaintiff's second successive motion for summary judgment, since plaintiff failed to offer any newly discovered evidence or demonstrate other sufficient cause for making the second motion. Defendant's deposition testimony, although not available at the time of the first motion, did not yield such new evidence as to warrant consideration of the second motion.

Student note: The document production, consisting of a series of emails between the parties and the proposed and final listing agreements, does not constitute new evidence, since they were available to the parties at the time of the first motion, and were extensively relied upon by the parties during oral argument of that motion.

Case:  Brown Harris Stevens Westhampton LLC v. Gerber, NY Slip Op 04546 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Prior written notice laws.

Premises' owner pleads exclusivity of Workers Comp.

Practice point:  The plaintiff allegedly was injured while working for his employer inside a warehouse leased from the owner of the premises, the defendant. Following the accident, the plaintiff applied for and received benefits under the Workers' Compensation Law from his employer and then he commenced this action seeking damages.The Appellate Division affirmed the denial of the defendant's motion for summary judgment dismissing the complaint on the ground that the action is barred by the exclusivity provisions of the Workers' Compensation Law § 11. The defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law by establishing that it was an alter ego of, or engaged in a joint venture with, the plaintiff's employer.

Student note:  Since the defendant failed to meet its prima facie burden, the court did not consider the sufficiency of the papers submitted in opposition.

Case:  Antrobus v. Bernhow Realty, LLC, NY Slip Op 04301 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Successive motions in the absence of new evidence.

A slip on sand on a basketball court.

Practice point:  The Appellate Division found that dismissal of the complaint was proper in this action where plaintiff alleges that he was injured when, while playing basketball, he slipped on sand on the court. Plaintiff assumed the risks inherent in playing on the outdoor court, and the sand he allegedly slipped on was a result of a naturally occurring condition of the outdoor setting.

Student note: The Court noted that plaintiff had played on the subject court on numerous occasions and was familiar with its problem of accumulating sand, which was dealt with by sweeping the court when necessary.

Case:   Austion v Parkchester S. Condominium, Inc., NY Slip Op 04424 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Premises' owner pleads exclusivity of Workers Comp.

An invalid 90-day demand, and issues raised for the first time on appeal.

Practice point:  The certification order did not constitute a valid 90-day demand pursuant to CPLR 3216 because it directed the plaintiff to file a note of issue within 70 days, rather than 90 days, of the date of the order. Since the order failed to conform with a statutorily mandated condition precedent to dismissal of the action, the Supreme Court was not authorized to dismiss the action pursuant to CPLR 3216.

Student note: Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record, and could not have been avoided if brought to the attention of the Supreme Court. Accordingly, the Appellate Division reached the issue and determined that the plaintiff's motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216, restore the action to the trial calendar, and extend the time to file a note of issue should have been granted.

Case: Guy v. Hatsis, NY Slip Op 03970 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A slip on sand on a basketball court.

90-day demands and notes of issue.

Practice point:  Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial. While the filing of a note of issue within 90 days after service upon the plaintiff of a written demand precludes a court from dismissing the action, pursuant to CPLR 3216[c], here, the plaintiffs' certificate of readiness stated that discovery proceedings now known to be necessary were not completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity, and the motion to vacate the note of issue was granted.

Student note: Having received a 90-day demand pursuant to CPLR 3216, the plaintiffs were required to file a proper note of issue or move, before the default date, to vacate the 90-day demand or to extend the 90-day period pursuant to CPLR 2004. The plaintiffs failed to timely file a proper note of issue or make a motion in response to the 90-day demand. Thus, to avoid dismissal of the complaint, the plaintiffs were required to show a justifiable excuse for the delay and a potentially meritorious cause of action.

Case:  Furrukh v. Forest Hills Hosp., NY Slip Op 03968 (2d Dept. 2013).

Here is the decision.

Monday's issue: An invalid 90-day demand.

An untimely summary judgment motion.

Practice point:  The Appellate Division affirmed the order denying summary judgment on the alternate ground that the motion, made more than fifteen months after the filing of the note of issue, was untimely, pursuant to CPLR 3212[a].  Defendant's purported excuse for the late motion - that a CD of an MRI, which had been lost, was found shortly before defendant made the motion - is inadequate. The parties agreed on the MRI's findings of a hip fracture, which were documented in other medical records, including an operative report. While the MRI was relied on by the parties' experts, it was not necessary for defendant's motion and the case could have proceeded to trial without that evidence.

Student note: The Appellate Division opined that, on the merits, the motion should have been denied. Defendant's moving papers failed to respond to a number of specific allegations of negligence asserted in the bill of particulars, including the central claim concerning the failure of its nurse to reposition the guardrails on the decedent's bed so as to prevent a fall.

Case: Gorman v. Montefiore Med. Ctr., NY Slip Op 04093 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: 90-day demands and notes of issue.

Breach of fiduciary duty and the business judgment rule.

Practice point: A cause of action sounding in breach of fiduciary duty must be pleaded with the particularity required by CPLR 3016(b), and the elements are (1) the existence of a fiduciary relationship; 2) misconduct by the defendant; and (3) damages directly caused by the defendant's misconduct.

Student note: While board members owe a fiduciary responsibility to treat all shareholders fairly and evenly, the business judgment rule bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.

Case:  Deblinger v. Sani-Pine Prods. Co, Inc., NY Slip Op. 03963 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: An untimely summary judgment motion.