A medical malpractice action, proximate cause, and judgment as a matter of law.

Practice point:  The required elements of proof in a medical malpractice action are a deviation or departure from good and accepted standards of medical practice, and evidence that such departure proximately caused the plaintiff's injuries. Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause. Establishing proximate cause requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant's departure was a substantial factor in causing the plaintiff's injury.

Student note:  A trial court may grant judgment as a matter of law for defendant, pursuant to CPLR 4401, only where it finds that, upon the evidence presented, there is no rational process by which the jury could find in the plaintiff's favor.

Case:  Brown v. Shah,  NY Slip Op 05980 ((2d Dept. 2013).

Here is the decision.

Tomorrow's issue: The emergency doctrine.

Piercing the corporate veil.

Practice point:  A legitimate purpose of incorporating is to limit or eliminate personal liability. However, the corporate form will be disregarded and the corporate veil pierced if necessary to prevent fraud or to achieve equity, and a claim may be asserted against an individual who controls the corporation.

Student note:  Piercing the corporate veil requires a showing that the individual defendant exercised complete dominion and control over the corporation and used such dominion and control to commit a fraud or wrong against the plaintiff which resulted in injury.

Case:  Bonacasa Realty Co., LLC v. Salvatore, NY Slip Op 05979 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A medical malpractice action, proximate cause, and judgment as a matter of law.

Judgment as a matter of law based on admissions, and eyewitnesses and probable cause.

Practice point:  An application for judgment as a matter of law may be made at the close of an opposing party's case, or at any time on the basis of admissions, pursuant to CPLR 4401. The grant of the application prior to the close of the opposing party's case is generally disfavored. However, it may be warranted prior to the presentation of any evidence if the plaintiff has, by some admission or statement of fact, completely compromised his or her case. Here, prior to the presentation of evidence, the plaintiff's counsel made certain admissions and statements of fact which demonstrated, as a matter of law, that the police had probable cause to arrest the plaintiff.

Student note:  Probable cause to believe that a person committed a crime is a complete defense to causes of action alleging false arrest and malicious prosecution. As a general rule, information from an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest. An eyewitness victim of a crime can provide probable cause for the arrest of the assailant despite the fact that the victim-witness' reliability has not been previously established or the information corroborated.

Case:  Okunubi v. City of New York, NY Slip Op 05886 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: :Piercing the corporate veil.

Establishing ownership through adverse possession.

Practice point:  A party seeking to obtain title by adverse possession must prove by clear and convincing evidence that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; 4) it was exclusive; and (5) it was continuous for the statutory period of 10 years.

Student note: Where, as here, the adverse possession claim is not founded upon a written instrument, the plaintiffs must establish, in accordance with the law in effect at the time this action was commenced, that the disputed property was either usually cultivated or improved or protected by a substantial inclosure, pursuant to RPAPL former 522.

Case:  Marone v. Kally, NY Slip Op 05882 (2d Dept. 2013).

Here is the decision.

Monday's issue: Judgment as a matter of law based on admissions, and eyewitnesses and probable cause.

Writings as evidence.

Practice point:  A writing is ordinarily not relevant at trial in the absence of evidence to show it was made, signed or adopted by a particular person. A private document offered to prove the existence of a valid contract cannot be admitted into evidence unless its authenticity and genuineness have been properly established.

Student note:  A document's authenticity may be established by submitting the document with a certificate of acknowledgment.

Case:  Fairlane Fin. Corp. v. Greater Metro Agency, Inc., NY Slip Op 05875 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Establishing ownership through adverse possession.

An out-of-possession landlord's liability, and expert opinions.

Practice point:  An out-of-possession landlord's duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct. Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession landlord, that it was not contractually obligated to maintain the subject parking lot, that it did not endeavor to maintain the subject parking lot, and that it did not owe the plaintiff a duty by virtue of any applicable statute or regulation.  The expert's opinion, as set forth in the affidavit, was speculative, conclusory, and insufficient to raise a triable issue of fact.

Student note:  The fact that the plaintiff's expert was not disclosed until seven months after the filing of the note of issue, and his affidavit was submitted only in response to the defendant's motion for summary judgment, did not, in and of itself, render the disclosure untimely.

Case:  Castillo v. Wil-Cor Realty Co., Inc., NY Slip Op 05871 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Writings as evidence.

The effect of an executed release.

Practice point:  A valid release completely bars an action on a claim that is the subject of the release. Principles of contract law govern the interpretation of a release; and a release that is complete, clear, and unambiguous on its face will be enforced according to the plain meaning of its terms.

Student note:  As with contracts, the meaning and scope of a release necessarily depends on the controversy being settled and the purpose for which the release was actually given.  A general release will not be construed to cover matters that the parties did not desire or intend to dispose of.

Case:  Burnside 771 LLC v. Amerada Hess Corp., NY Slip Op 05869 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: An out-of-possession landlord's liability, and expert opinions.

Tenure by estoppel.

Practice point:  Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term.  Here, however, the teacher had requested a one-year extension of the probationary period and, on being terminated, could not assert that tenure had been acquired by estoppel.

Student note:  Estoppel is a bar which precludes a party from denying a certain fact or state of facts to the detriment of another party who was entitled to rely on such facts and acted on that reliance.

Case: Chisholm v. Hochman, NY Slip Op 05818 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: The effect of an executed release.

A dog bite and the professional judgment rule.

Practice point:  The plaintiff commenced this action alleging negligence after he was bitten by a dog employed by the canine unit of the defendant's police department. The plaintiff was a school custodian who was at the scene of the incident because the police needed him to to open certain doors in order to conduct a search.

In denying summary judgment, the court noted that the professional judgment rule insulates a municipality from liability for its employees' performance of their duties where the conduct involves the exercise of professional judgment, such as electing one among many acceptable methods of carrying out tasks or making tactical decisions.  However, the immunity does not extend to situations where an employee-police officer violates acceptable police practice.  The court found a question of fact as to whether the dog-handler's conduct was consistent with acceptable police practice.

Student note:  In the absence of a prima facie showing, summary judgment was denied regardless of the sufficiency of the plaintiff's opposing papers.

Case:  Newsome v. County of Suffolk, NY Slip Op 05805 (2d Dept. 2013).

Here is the decision.

Monday's issue:  Tenure by estoppel

A premises liability claim.

Practice point:  To demonstrate prima facie entitlement to judgment as a matter of law in a premises liability case, a defendant must establish that it did not create the condition that allegedly caused the fall or have actual or constructive notice of that condition. For constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it.

Here, the defendants established, prima facie, that they did not create or have actual or constructive notice of the alleged hazardous condition, as the condition of the screws, which were hidden from view, could not have been discerned by reasonable inspection. In opposition, the plaintiff failed to raise a triable issue of fact. The photographs of the accident site, which did not depict the broken screws, and the affidavit of the plaintiff's expert, who never inspected the staircase, were insufficient to defeat summary judgment.

Student note:  Constructive notice will not be imputed where a defect is latent and would not be discoverable upon reasonable inspection

Case:  Hoffman v. Brown, NY Slip Op 05798 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A dog bite and the professional judgment rule.

Counsel fees in a divorce action.

Practice point:  Domestic Relations Law § 237 provides that in any action for a divorce, the court may direct either spouse to pay counsel fees directly to the attorney of the other spouse to enable the other party to carry on or defend the action as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. The statute provides that there shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. A determination of an application for interim counsel fees is committed to the sound discretion of the trial court. Such an award is intended to ensure that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse.

Student note:  The issue of interim counsel fees is controlled by the equities of the case and the financial circumstances of the parties. An award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties.

Case:  Falcone v. Falcone, NY Slip Op. 05795 (2d Dept. 2013).

 Here is the decision.

Tomorrow's issue: A premises liability claim.