Summary judgment in a personal injury action.

Practice point:  To prevail on the motion on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but also that he or she was free from comparative fault.

Student note:  The movant bears the initial burden of establishing prima facie entitlement to such relief, tendering sufficient evidence to eliminate any material issues of fact from the case.

Case:  Anjum v. Bailey, NY Slip Op 08792 (2d Dept. 2014)

Here is the decision.

Friday's issue:  Snow, ice, and a homeowner's liability.

A time-barred claim and equitable estoppel.

Practice point:  The Appellate Division determined that plaintiffs' claims for conversion and tortious interference with contract against the individual defendant, relating to unpaid producer royalties allegedly due to plaintiffs since 1992, were properly dismissed as time-barred. Plaintiffs cannot argue that defendant should be equitably estopped from raising the statute of limitations defense since the issue was not raised before the motion court. In any event, the argument is unavailing because plaintiffs rely on the same acts that form the basis of their underlying claims.

Student note:  For equitable estoppel to apply, plaintiffs must establish that defendants' subsequent and specific actions somehow kept them from timely bringing suit.

Case:  Stroud Prods. & Enters., Inc v. BMG Music, NY Slip Op 08778 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Summary judgment in a personal injury action.

New York's application of res judicata.

Practice point:  New York has adopted the transactional analysis approach in deciding the application of the doctrine of res judicata. Under this analysis, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.

Student note:  It is not always clear whether particular claims are part of the same transaction for res judicata purposes. New York uses a pragmatic' test to make this determination, analyzing whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage. One linchpin of res judicata is an identity of parties actually litigating successive actions against each other, and the doctrine applies only when a claim between the parties has been previously brought to a final conclusion.

Case:  Specialized Realty Servs., LLC v. Maikisch, NY Slip Op 08627 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A time-barred claim and equitable estoppel.

A claim for common-law negligence.

Practice point:  Even when negligence and injury are both properly found, the negligent party may be held liable only where the alleged negligence is a proximate cause of the injury.  Generally it is for the jury to determine the issue of causation. However, on a motion for summary judgment, the court will decide, as a matter of law, whether a prima facie case of negligence has been established.

Student note: The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury.

Case:  Roberson v. Wyckoff Hgts. Med. Ctr., NY S.lip Op 08622 (2d Dept. 2014)

Here is the decision.

Monday's issue: New York's application of res judicata.

A physician's motion to dismiss a medical malpractice claim.

Practice point:  The physician-defendant's bare allegations which do not refute the specific factual allegations in the bill of particulars are insufficient to establish entitlement to judgment as a matter of law.

Student note:  A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no deviation or departure or that any alleged deviation or departure was not a proximate cause of the plaintiff's injuries.

Case: Reiss v. Sayegh, NY Slip Op 08619 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A claim for common-law negligence.

A collision with an unmarked police car.

Practice point:  The Appellate Division affirmed the granting of the municipal defendant's motion for summary judgment in this action involving a collision between an unmarked police vehicle and a taxi.

The police vehicle was an authorized emergency vehicle performing an emergency operation, namely, pursuing a traffic violator, and its operator was authorized to proceed through the red light, once it slowed down, pursuant to Vehicle and Traffic Law §§ 101, 114-b), and 1104 [a],[b][2]. In order to hold the municipal defendants liable, a plaintiff must demonstrate that the officer driving the police vehicle acted with reckless disregard for the safety of others, which requires a showing that he has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.

Here, the officer's uncontroverted testimony was that he came to a complete stop prior to entering the intersection. The fact that he looked in the direction of, but did not see, the approaching taxi did not render his conduct reckless.

Student note:  Issues of fact as to whether the police lights were on or whether the siren was activated do not require a different result. A police vehicle performing an emergency operation is not required to activate either of these devices, in order to be entitled to the statutory privilege of passing through a red light, pursuant to Vehicle and Traffic Law § 1104[c].

Case:  Flynn v. Sambuca Taxi, LLC, NY Slip Op 08723 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A physician's motion to dismiss a medical malpractice claim.

A rear-end collision and a negligence claim.

Practice point:  One of several nonnegligent explanations for a rear-end collision may be a sudden stop of the lead vehicle.  However, vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the following driver, who is under a duty to maintain a safe distance between the following car and the car ahead.

Student note:  A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rear vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision.

Case:  Le Grand v. Silberstein, NY Slip Op 08608 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A collision with an unmarked police car.

A school bus company's liability for a fight on the bus.

 Practice point:  The bus defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they had no notice of any violent propensities or disciplinary problems on the part of the assailant.  The assailant's act of punching the infant plaintiff was sudden and unforeseeable, and any lack of supervision was not a proximate cause of the infant's alleged injuries.

Student note:  Like a school, a school bus company has a duty to adequately supervise children in its care, and to exercise the same degree of care toward them as would a reasonably prudent parent under similar circumstances. However, schools and school bus companies are not insurers of their students' safety. For liability to attach, they must have notice of the specific dangerous conduct so as to render the injury foreseeable, as well as a reasonable opportunity to prevent it.

Case:  Braun v. Longwood Jr. High School, NY Slip Op 08595 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A rear-end collision and a negligence claim.

Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.

Practice point:  Plaintiff failed to establish a prima facie case of discrimination under either the State or City Human Rights Laws because he failed to allege that defendants, who rejected plaintiff's screenplay submissions, were actually aware of his race. Instead, the complaint merely alleges that plaintiff sent defendants a link to a social networking site that contained his photograph, and that his photo was also available on the internet. In fact, the complaint itself suggests that defendants did not reject his screenplay submissions because of his race, but because defendants reviewed such submissions only when they were referred by a movie industry insider, and plaintiff did not know such an insider. The complaint also fails to allege discrimination under a disparate impact theory because it fails to allege any facts showing that defendants' insider-referral policy falls more harshly on black screenwriter applicants than other groups.

Student note:  Plaintiff does not adequately allege that he sought employment with defendants, as is required to support a State or City claim for unlawful discriminatory practices in employment by employers, and discrimination in an employment agency's referrals to an employer, pursuant to Executive Law §§ 296[1][a], [b] and Administrative Code §§ 8-107[1][a], [b].

Case:  Samuels v. William Morris Agency, NY Slip Op 08562 (1st Dept. 2014)

Here is the decision.

Monday's issue:  A school bus company's liability for a fight on the bus.

A motion to strike the testimony of defendant's expert.

Practice point:  The Appellate Division affirmed the denial of plaintiff's cross motion to strike the testimony of defendant's expert concerning the cause of the decedent's death. Upon receipt of defendant's 3101(d) statement expert disclosure statement, plaintiff's only objection was that the expert's qualifications failed to include the dates of his residency, which deficiency defendant then cured. Plaintiff neither rejected the document nor made any objection to the lack of specificity regarding the cause of death.

The Appellate Division determined that, having failed to timely object to the lack of specificity in defendant's expert disclosure statement regarding the cause of the decedent's death, plaintiff was not justified in assuming that the defense expert's testimony would comport with the conclusion reached by the autopsy report. The Appellate Division further determined that  plaintiff cannot now be heard to complain that defendant's expert improperly espoused some other theory of causation for which there was support in the evidence.

There was, however, a dissent.

Student note:  CPLR 3101(d)(1) requires reasonably detailed expert disclosure of the substance of the facts and opinions on which each expert is expected to testify in order to provide the plaintiff with the defendant's theories of the case in advance of trial.

Case:  Rivera v. Montefiore Med. Ctr., NY Slip Op 08469 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.

The denial of defendant's summary judgment motion in a Labor Law § 200 action.

Practice point:  Where, as here, a plaintiff contends that an accident occurred because of a dangerous condition at the work-site, an owner moving to dismiss Labor Law § 200 and common-law negligence claims has the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of it. Defendant failed to meet that burden and the Appellate Division affirmed the motion's denial

Student note:  The failure to make a prima showing requires the motion's denial, regardless of the sufficiency of the opposition papers.

Case:  Costa v. Sterling Equip., Inc., NY Slip Op 08391 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A motion to strike the testimony of defendant's expert.