Additional discovery after filing a note of issue.

Practice point:  The Appellate Division reversed, and denied that branch of the defendant's renewed motion which was to compel the plaintiff to submit to an independent medical examination.

The Appellate Division held that the defendant waived her right to conduct an independent medical examination of the plaintiff by failing to designate a physician to conduct such examination within the time period set forth in the relevant compliance conference order, and by her failure to move to vacate the note of issue within 20 days after service of the note of issue and certificate of readiness, pursuant to 22 NYCRR 202.21[e].

Student note:  The Supreme Court may, in its discretion, permit additional discovery after the filing of a note of issue and certificate of readiness where the movant demonstrates that unusual or unanticipated circumstances developed subsequent to the filing, requiring additional pretrial proceedings to prevent substantial prejudice, pursuant to 22 NYCRR 202.21[d].

Case:  Gianacopoulos v. Corona, NY Slip Op 07948 (2d Dept. 2015)

Here is the decision.

Monday's issue:  A motion for leave to reargue.

Comparative negligence and the seat-belt defense in an auto accident action.

Practice point:  Regardless of an issue of comparative negligence as between the driver of the vehicle in which plaintiff was a passenger and the driver of the other vehicle, plaintiff may seek partial summary judgment against the other vehicle's driver.

Student note:  The assertion of a seat-belt defense goes to the determination of damages, as a potentially mitigating factor, and not to liability.

Case:  Davis v. Turner, NY Slip Op 07922 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Additional discovery after filing a note of issue.

Court holiday.

Interest in an action to recover on a promissory note.

Practice point:  If the note does not contain an interest provision but is payable on demand, then interest accrues from the date of the demand, at the statutory rate for a judgment.  Here, the only record evidence as to a demand for payment by plaintiff under the note is a demand letter dated July 24, 2009, and so that is the date from which the prejudgment interest should be calculated.

Student note:  In an action on a promissory note, CPLR 5001 permits a creditor to recover prejudgment interest from the date on which each payment of principal or interest became due under the terms of the note until the date on which liability is established.

Case:  Gliklad v. Cherney, NY Slip Op 07919 (1st Dept. 2015)

Here is the decision.

Thursday's issue:  Comparative negligence and the seat-belt defense in an auto accident action.

Testimony of a witness who was not identified prior to trial.

Practice point:  The Appellate Division determined that the trial court properly permitted the testimony of a witness whose identity was not disclosed prior to trial. The witness was called to lay the foundation for the admission of a nonparty witness's statement, and he was not the type of witness whose identity was required to be disclosed during discovery, pursuant to CPLR 3101.

Student note:  The witness's testimony was not hearsay.

Case:  Cruz v. City of New York, NY Slip Op 07910 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Interest in an action to recover on a promissory note.

Leave to amend the complaint.

Practice point:  The Appellate Division reversed the motion court and denied so much of plaintiff's motion as sought to amend the complaint to add a cause of action for wrongful death, finding that the proposed amendment was palpably insufficient.

The Appellate Division determined that the record shows that plaintiff's decedent suffered from numerous serious ailments prior to the alleged malpractice, and did not die until nearly two years after the alleged malpractice. There had been a number of other procedures performed by nondefendants, and plaintiff's decedent had been in the care of other nondefendants for those two years.  The conclusory assertion of causation, as stated in plaintiff's counsel's supporting affirmation, was insufficient to establish a causal connection between the decedent's death and the originally alleged malpractice by defendants.

Student note:  A motion seeking leave to amend a complaint to assert a cause of action for wrongful death must be supported by competent medical proof of the causal connection between the alleged malpractice and the original plaintiff's death.

Case:  Imperati v. Lee, NY Slip Op 07907 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Testimony of a witness who was not identified prior to trial.

Contractual indemnification.

Practice point:  The right to contractual indemnification depends upon the specific language of the contract.  A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances.

Student note:  A party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.

Case:  Bleich v. Metropolitan Mgt., LLC, NY Slip Op 07808 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to amend the complaint.

Contractual terms of duration.

Practice point:   A definite term of duration need not be relayed in express terms, and may be implied. In the absence of an express term fixing the contract's duration, a court supply the missing term, so long as a duration may be fairly and reasonably fixed by the surrounding circumstances and the parties' intent.

Student note:  Contracts containing no definite term of duration are terminable at will.

Case:  Bennett v. Atomic Prods. Corp., NY Slip Op 07806 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contractual indemnification.

Calculating interest.

Practice point:  The Appellate Division modified the jury award to plaintiff, vacating the award of interest and remanding for interest to be calculated at the rate of 3%, not 9%, from the date of the liability verdict.

The Appellate Division explained that, although the judgment is against the City, and not the New York City Transit Authority, which is not a party to the action, the Transit Authority is the real party in interest, as it is bound to indemnify the City pursuant to a lease, and will ultimately pay the judgment. Therefore, the interest rate set forth in Public Authorities Law § 1212(6) applies to the judgment. Even though the City did not object to the interest rate when the judgment was proposed for settlement, the 3% interest rate is mandated by statute, and the error should be corrected.

Student note:  Pursuant to Public Authorities Law § 1212(6), the rate of interest on the judgment may be no more than 3% per year.

Case:  Soltero v. City of New York, NY Slip Op 07739 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contractual terms of duration.

Dismissal with another action pending.

Practice point:  The Appellate Division affirmed dismissal of the complaint, pursuant to CPLR 3211(a)(4), as it is undisputed that there was a pending foreclosure action on the same mortgage commenced by plaintiff's predecessor-in-interest.

Student note:  Where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211(a)(4) on the ground that there is another action pending.  The critical element is that both suits arise out of the same subject matter or series of alleged wrongs.

Case:  Aurora Loan Servs., LLC v. Reid, NY Slip Op 07607 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Calculating interest.

Leave to renew and reargue.

Practice point:  Respondent moved to dismiss the appeal on the ground that there is no appeal from an order denying reargument. Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the submission of the appeal, the Appellate Division granted the motion to dismiss the appeal, and the appeal was dismissed.  The Appellate Division found that, while the appeal was of a motion denominated as one for leave to renew and reargue, it was, in actuality, only for leave to reargue, the denial of which is not appealable, pursuant to CPLR 2221[d][2] and [e][2].

Student note:  Regardless of how it was denominated, appellant's motion, was not for leave to renew and reargue, as it did not offer any new facts that had not been offered on her prior motion for summary judgment dismissing the complaint insofar as against her.

Case:  Arch Bay Holdings, LLC-Series 2010C v. Daisy, NY Slip Op 07606 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Dismissal with another action pending.