An untimely note of issue.

Practice point:  After having failed to comply with the 90-day demand, the plaintiff's unsubstantiated assertion that she entered into an arbitration agreement with the defendant was insufficient to excuse the delay in serving and filing the note of issue. In addition, even though the parties engaged in negotiations regarding arbitration, the plaintiff failed to demonstrate that she was actively engaged in these negotiations for any significant amount of time prior to the default date, or during the ensuing one-year period between the default date and the motion to dismiss. Finally, the conclusory allegations contained in the verified complaint were insufficient to demonstrate that the plaintiff had a potentially meritorious cause of action.

Student note:  The defendant served the plaintiff with a 90-day demand pursuant to CPLR 3216, and so the plaintiff was required to serve and file a timely note of issue or to move, before the default date, either to vacate the demand or for an extension of time, pursuant to CPLR 2004. The plaintiff did neither. To avoid dismissal of the action, the plaintiff was required to show a justifiable excuse for the delay and a potentially meritorious cause of action, pursuant to CPLR 3216[e].

Case:  Abdul v. Lopez, NY Slip Op 07141 (2d Dept. 2013).

Here is the decision.

Monday's issue: An auto accident at an intersection.

A claim sounding in medical malpractice, negligence, and lack of informed consent.

Practice point:  The causes of action were dismissed, as plaintiff failed to submit evidence to rebut defendants' prima facie showing that they did not deviate from the accepted standard of care in their treatment of the decedent during her 20-day admission at defendant Manhattanville. His expert assumed that the decedent had a C. difficile infection throughout her admission and that the infection worsened during her stay. He failed to support these conclusions by referring to specific entries in the records, and, as to two negative stool sample tests, he speculated that they had been handled poorly.  Plaintiff's expert's claims that the decedent suffered from dehydration and was not properly nourished were conclusory and failed to controvert defendants' expert's evidence to the contrary. Moreover, the expert failed to causally relate the decedent's injuries to defendants' alleged departures from the standard of care.

Student note:  Plaintiff's expert's opinion as to the lack of informed consent was predicated on his unsupported assumption as to the duration of the C. difficile infection and relied on alternative "potential" treatments that were experimental, without addressing whether the decedent would have been a candidate for any of them. Moreover, the expert did not opine that the lack of informed consent was a proximate cause of the decedent's injuries. The opinion was therefore insufficient to raise an inference that a reasonably prudent person in the decedent's circumstances, having been appropriately informed of the risks and alternatives, would have elected an alternate course of treatment, and that the lack of informed consent was the proximate cause of the decedent's injuries, pursuant to Public Health Law § 2805-d[1], [3].

Case:  Denis v. Manhattanville Rehabilitation & Health Care Ctr., LLC, NY Slip Op 07253 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: An untimely note of issue.

Pleading fraud.

Practice point:  The complaint must allege a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.

Student note:  A claim rooted in fraud must be pleaded with the requisite particularity, pursuant to CPLR 3016(b).

Case:  FNF Touring LLC v. Transformer Am. Corp., NY Slip 07248 (1st Dept. 2013). 

Here is the decision.

Tomorrow's issue: A claim sounding in medical malpractice, negligence, and lack of informed consent.

Derivative actions and pre-suit demands.

Practice point:  The motion to dismiss was granted after plaintiff failed to allege that a pre-suit demand would have been futile. A shareholder may not institute a derivative action unless the complaint sets forth with particularity the shareholder's efforts to secure the initiation of that action by the board of directors, or sets forth sufficient and particular reasons for not making such efforts, pursuant to Business Corporation Law § 626[c]. A pre-suit demand is similarly required in a derivative action involving a limited liability company.

Student note:  A plaintiff is unable to bring a derivative action when the interests at issue are personal to it, not corporate.

Case:  Najjar Group, LLC v. West 56th Hotel LLC, NY Slip Op 07123 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:  Pleading fraud.

Court holiday.

The courts are closed to mark Veterans Day.

Thank you, Veterans of all ages, of whatever service or stripe, whenever or wherever you served, and in whatever capacity.

Tomorrow's issue: Derivative actions and pre-suit demands.

A Labor Law § 240[1] claim.

Practice point:  The statute imposes a non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks, and liability will attach where a violation of that duty proximately caused injuries. Conversely, where a plaintiff's own actions are the sole proximate cause of the accident or injury, there is no liability under the statute. Where there is an adequate safety device readily available, and for no good reason plaintiff chooses not to use it, the statute does not apply.

Student note:  The site safety consultant cannot be liable for the accident under plaintiff's theories because it was a subcontractor with no supervisory authority over plaintiff or his work.

Case:  Barreto v. Metropolitan Transp. Auth., NY Slip Op 07118 (1st Dept. 2013).

Here is the decision.

Tuesday's issue: Derivative actions and pre-suit demands.

Statute of limitations.

Practice point:  The Appellate Division determined that, contrary to the defendants' contentions, the complaint, in substance, alleged a negligence cause of action; it did not allege the intentional tort of assault and battery. As such, the complaint was not time-barred, as it was governed by the three-year statute of limitations applicable to negligence, pursuant to CPLR 214[5], not the one-year statute of limitations applicable to assault and battery, pursuant to CPLR 215[3]. 

Student note: In classifying a cause of action for statute of limitations purposes, the controlling consideration is not the form in which the cause of action is stated, but its substance.

Case:  Faiella v. Tysens Park Apts., LLC, NY Slip Op 07008 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A Labor Law § 240[1] claim.

A fall from a catwalk.

Practice point:  The defendants established their prima facie entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, who had no recollection of the accident and could only state that just prior thereto, he heard a "sound . . . like the wood giving out from underneath me." Based on this testimony, a jury would have to speculate as to the cause of the accident. In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, his employer's deposition testimony was insufficient to raise a triable issue of fact on causation. The testimony regarding a conversation he had with the plaintiff at the hospital following the accident about what caused him to fall was vague and, in any event, hearsay.  The deposition testimony regarding a conversation he had with a maintenance person employed by the church about what the plaintiff told him caused the accident also constituted hearsay. Finally, although, in opposition to the defendants' motion, the plaintiff's expert offered his opinion regarding dangerous conditions that caused the plaintiff's accident, such as the lack of handrails, there was no evidence to connect these alleged dangerous conditions to the plaintiff's fall.

Student note:   A defendant can establish its prima facie entitlement to judgment as a matter of law by showing that the plaintiff cannot identify the cause of the accident.  A plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the injuries would be based on speculation.

Case:  Antelope v. Saint Aidan's Church, Inc., NY Slip Op 07003 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Statute of limitations.

Court holiday.

The courts are closed for election day.

Tomorrow's issue: A fall from a catwalk.

Discovery sanctions.

Practice point:  To invoke the drastic remedy of preclusion, the court must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious. The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse.

Student note: Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed. The nature and degree of the penalty is a matter generally left to the court's discretion

Case:  Aha Sales, Inc. v. Creative Bath Prods., Inc., NY Slip Op 07001 (2d Dept. 2013).

Here is the decision.

Wednesday's issue: A fall from a catwalk.

Labor Law § 241[6].

Practice point:  The statute imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed.  To state a cause of action, a plaintiff must allege that the property owners violated a regulation that sets forth a specific standard of conduct, and not simply a recitation of common-law safety principles.

Student note:  Since this section imposes a nondelegable duty on owners, a plaintiff need not show that a defendant exercised supervision or control over the worksite in order to establish a right of recovery.

Case:  Gonzalez v. Perkan Concrete Corp., NY Slip Op 06835 (2d Dept. 2013).

Here is the decision.

Monday's issue: Discovery sanctions.