A summary judgment motion in a medical malpractice motion.

Practice point:  On the motion, the defendant-physician must make a prima facie showing that there was no departure from good and accepted medical practice, or that the plaintiff was not injured thereby.  On such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut, but only as to those elements on which the defendant met its burden..

Here, the Appellate Division found that the Supreme Court correctly concluded, the defendants had made the requisite showing, shifting the burden to the plaintiff, who relied on the affirmations of two physicians, one board-certified in internal medicine and nephrology, and the other board-certified in diagnostic, interventional, and vascular radiology. The Appellate Division  agreed with the Supreme Court's determination that these affirmations consisted of conclusory and unsupported allegations, that they failed to address the salient issues concerning the defendants' alleged departures from accepted medical practice, and that they failed to respond to relevant issues raised by the defendants' experts. While one of the plaintiff's experts concluded that certain of the decedent's symptoms were consistent with nephrotoxicity resulting from the use of intravenous contrast in the procedures, both affirmations were speculative in concluding that the decedent's condition was caused by the defendants' actions in performing the second angiogram. Moreover, the plaintiff's experts failed to differentiate between and among the acts and omissions of the various defendants. Accordingly, these affirmations were insufficient to raise a triable issue of fact.

Student note: Because the cause of action to recover damages for wrongful death and the derivative cause of action were both premised on the defendants' alleged malpractice, the same conclusion applies to these causes of action.

Case:  Ahmed v. Pannone, NY Slip Op 02552 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Causes of action for quantum meruit and unjust enrichment.

Transfer of assets and Medicaid ineligibility.

Practice point:  An individual will not be ineligible for Medicaid as a result of a transfer of assets if it is determined that the denial of eligibility will result in an undue hardship. An undue hardship occurs where the institutionalized individual is otherwise eligible for Medicaid, is unable to obtain appropriate medical care without the provision of Medicaid, and is unable to have the transferred assets returned, pursuant to18 NYCRR 360-4.4.

Student note:  In reviewing a Medicaid eligibility determination made after a fair hearing, the court must review the record, as a whole, to determine if the agency's decisions are supported by substantial evidence and are not affected by an error of law. "Substantial evidence" is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.

Case: Matter of Tarrytown Hall Care Ctr. v. McGuire, NY Slip Op 02600 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A summary judgment motion in a medical malpractice action.

Legal malpractice claims and settlements.

Practice point:  A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel.  However, a plaintiff's conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a claim.

Student note:  To recover damages in a legal malpractice action, a plaintiff must establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages.  As to causation, a plaintiff must show that, but for the attorney's negligence, he or she would have prevailed in the underlying action or would not have incurred any damages.

Case:  Benishai v. Epstein, NY Slip Op 02404 (2d Dept. 2014).

Here is the decision.

Monday's issue: Transfer of assets and Medicaid ineligibility.

A time-barred fraud claim.

Practice point:  A fraud-based action must be commenced within six years of the fraud, or within two years from the time the plaintiff discovered the fraud, or could with reasonable diligence have discovered it, whichever is later, pursuant to CPLR 213[8].

Student note:  On a motion to dismiss a complaint as time-barred, pursuant to CPLR 3211(a)(5), the defendant must establish, prima facie, that the time in which to commence the action has expired. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

Case: Belzer v. Hirsch, NY Slip Op 02403 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Legal malpractice claims and settlements.

Standing to commence a mortgage foreclosure action.

Practice point: A plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation. Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity.

Student note: Where the defendant puts standing into issue, the plaintiff must prove its standing in order to be entitled to relief.

Case: Bank of N.Y. Mellon v. Gales, NY Slip Op 02402 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A time-barred fraud claim.

A motion for leave to renew.

Practice point:  The Appellate Division found that the Supreme Court providently exercised its discretion in granting that branch of the defendants' motion which was for leave to renew their opposition to the plaintiff's motion for summary judgment on the issue of liability, which motion had been granted in a prior order. The defendants offered a reasonable excuse for not including an affidavit from a certain nonparty witness in their prior opposition to the motion. It was not a mistake for the Supreme Court to consider the nonparty affidavit, even though it was signed and notarized in Florida and was not accompanied by a certification in accordance with CPLR 2309(c). This was not a fatal defect, as the plaintiff was not prejudiced thereby, pursuant to CPLR 2001.

Student note:  A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221[e][2], and must contain contain reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][3].

Case:  Ali v. Verizon N.Y., Inc., NY Slip Op 02401 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Standing to commence a mortgage foreclosure action.

A hearing on proper service of process.

Practice point:  The Appellate Division found that the Supreme Court should have granted those branches of the appellant's motion which were pursuant to CPLR 5015(a)(4), to vacate the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8), to dismiss the complaint for lack of personal jurisdiction. The Supreme Court's finding that the process server delivered the summons and complaint to the appellant's youngest daughter, who, at the time of service, was 15 ½ years old, was not warranted by the facts.  There was insufficient evidence at the hearing to establish that the description in the affidavit of service matched the actual appearance of the appellant's youngest daughter. In addition, neither the affidavit of service nor the process server's testimony established that papers were mailed to the appellant's last known residence, pursuant to CPLR 308[2].

Student note:  The Appellate Division's authority to review a determination rendered after a hearing is as broad as that of the hearing court, and may render the determination it finds warranted by the facts, taking into account, in a close case, that the hearing court had the advantage of seeing the witnesses.

Case:  HSBC Bank USA, N.A. v Hamilton, NY Slip Op 02261 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A motion for leave to renew.

Post-appeal motions to renew.

Practice point:  A court of original jurisdiction may entertain a motion for leave to renew based on new facts even after an appellate court has affirmed the original order.  However, on a post-appeal motion to renew, the movant bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court' in order to imbue the appellate decision with a modicum of certainty.

Student note: A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221[e][2], and must offer reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][3].

Case:  Davi v. Occhino, NY Slip Op 02253 (2d Dept. 2014).

Here is the decision.

Monday's issue: A hearing on proper service of process.

Disqualifying an attorney.

Practice point:  To disqualify an attorney under rule 3.7(a) of  22 NYCRR 1200.0, the Rules of Professional Conduct, the moving party must demonstrate that the testimony of the opposing party's counsel is necessary to the moving party's case, and that such testimony would be prejudicial to the opposing party.

Student note: The Rules of Professional Conduct are not binding authority and provide guidance only.

Case: Cathedral Ct. Assocs., L.P. v Cathedral Props. Corp., NY Slip Op 02252 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Post-appeal motions to renew.

Allegations of improper increased mortgage payments.

Practice point:  The Appellate Division found that plaintiff's allegations of improper increased mortgage payments and improper notices of such increases were contradicted by provisions in the loan documents.  The motion court correctly found that plaintiff had failed to allege that his next mortgage payments of the minimum amount authorized under the loan documents would not have triggered defendants' right to increase his monthly payment obligations; his assertion that he had not triggered such right at the time of the notices begged the question. The loan documents lacked any provision imposing on defendants a duty to modify the notes or negotiate a workout, and, pursuant to the covenant of good faith, such terms cannot be added.

Student note:  The Appellate Division further found that plaintiff's cause of action for violation of General Business Law § 349 was untimely, as it accrued upon defendants' first notice of mortgage payment increases, more than three years before the service of the pleadings in this action, pursuant to CPLR 214.

Case:  Brown v. Deutsche Bank Natl. Trust Co., NY Slip Op 02336 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Disqualifying an attorney.

An untimely appeal.

Practice point:  Defendants' appeal from the motion court's order was untimely since their notice of appeal was filed months after the order was served on them with notice of entry, pursuant to CPLR 5513. Plaintiffs properly served notice of entry upon defendants' former counsel, who was then counsel of record, and counsel, in turn, served defendants with a copy of the order with notice of entry, and filed proof of service, in compliance with the motion court's order.

 Student note:  Defendants' denials of receipt of the certified mail packages, which were returned marked "Refused," is insufficient to rebut the showing of service.

Case: Campion A. Platt Architect, P.C. v. Lenz, NY Slip Op 02332 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Allegations of improper increased mortgage payments.