A motion to vacate a self-executing preclusion order.

Practice point:  The Appellate Division affirmed the denial of plaintiff's cross motion to vacate the self-executing preclusion order, as plaintiff failed to provide a reasonable excuse for his failure to appear at defendant's five separately scheduled medical examinations, two of which occurred after the issuance of the preclusion order.  Plaintiff's claimed lack of knowledge of the scheduled medical examinations is unreasonable, especially since he failed to indicate any efforts he made to stay in contact with his counsel, despite the fact that there were two court orders directing that he appear for his medical examination. Plaintiff does not deny that he was aware of those orders. His counsel also failed to confirm his assertions that he had no contact with his counsel, or that they mailed medical examination notices to plaintiff's mother's address.

Plaintiff also failed to show that his was a meritorious claim.  He failed to submit an affidavit of merit, and the only evidence he submitted as proof of defendant's liability was a police accident report containing his hearsay statement as to how the accident happened. This is insufficient to demonstrate a meritorious cause of action.

Student note:  The preclusion of any testimony as to plaintiff's medical condition rendered him unable to establish a prima facie case.

Case:  Arzuaga v. Tejada, NY Slip Op 08108 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  An injury resulting from an elevation-related risk.

Vicarious liability in a personal injury claim against a bouncer.

Practice point: When security guards or bounders are hired to maintain order, they may be acting within the scope of their employment when they use physical force on the businesses' patrons.

Student note:  An employer may be vicariously liable for its employees' negligence or intentional tortious conduct, as long as the employee's acts were committed in furtherance of the employer's business.

Case:  Fauntleroy v. EMM Group Holdings LLC, NY Slip Op 08106 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion to vacate a self-executing preclusion order.

A motion for leave to reargue.

Practice point:  No appeal lies from the denial of a motion for leave to reargue.

Student note:  The right of direct appeal of an intermediate order terminates with the entry of judgment in the action.

Case:  Green v. Canada Dry Bottling, NY Slip Op 07949 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Vicarious liability in a personal injury claim against a bouncer.

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.