Expert testimony and jury delibertions.

Practice point:  The jury is entitled to resolve in plaintiff's favor the conflict between the parties' expert witness testimony.  While defendant's expert reached a different conclusion as to causation, the jury is free to accord more weight to the testimony of plaintiff's expert.

Student note: The jury's resolution of the conflicting expert testimony is not a basis for an appellate court's disturbing the verdict.

Case:  Douayi v. Carissimi, NY Slip Op 02563 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  An attorney's withdrawal.

The death of a party.

Practice point:  The death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for the decedent, pursuant to CPLR 1015(a).  Any determination rendered without the necessary substitution will be deemed a nullity.

Student note:  The death of a party terminates the authority of that person's attorney to act on that person's behalf.

Case:  Aurora Bank FSB v. Albright, NY Slip Op 02307 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Expert testimony and jury deliberations.

Summary judgment in a slip-and-fall action.

Practice point:  The defendant's maintenance employee testified at his deposition about his regular cleaning routine for the building, but he had no independent recollection of having cleaned the floor on the date of the plaintiff's accident.  There was no deposition testimony describing the condition, including whether the maintenance employee had seen water on the floor.  Since the defendant did not submit evidence regarding any specific inspection or cleaning of the area on the date of the accident, the defendant failed to establish that it did not have constructive notice of the alleged dangerous condition.  In addition, the defendant's submissions did not eliminate all triable issues of fact as to whether it created the alleged dangerous condition.  Therefore, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, and the Appellate Division affirmed the denial of the defendant's motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers.

Student note:  A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.  To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall. Mere reference to general cleaning practices, without evidence of any specific cleaning or inspection of the area, does not establish lack of constructive notice.

Case:  Ansari v. MB Hamptons, LLC, NY Slip Op 02305 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  The death of a party.

A motion to dismiss, and amending a bill of particulars.

Practice point:  The Appellate Division affirmed the motion to dismiss, as photographic evidence proves, and plaintiff acknowledges, that the compressor that was allegedly involved in plaintiff's accident was not at the job site on the day alleged. Plaintiff was not entitled to amend the bill of particulars on the eve of trial, after approximately seven years of litigation, since the photographs serving as the basis for the amendment were not newly available to plaintiff. Moreover, the proposed amendment, including changing the date of the accident, would have resulted in prejudice to defendants  

Student note:  Leave to amend pleadings, including a bill of particulars, will be freely given, absent prejudice or surprise. However, when the amendment is sought at or on the eve of trial, judicial discretion in allowing the amendment should be discreet, circumspect, prudent, and cautious.

Case:  Garguilo v. Port Auth. of N.Y. & N.J., NY Slip Op 02534 (1st Dep't 2016) 

Here is the decision.

Tomorrow's issue:  Summary judgment in a slip-and-fall action.

Setting up a supplemental needs trust.

Practice point:  Plaintiff's daughter, now the decedent, had entered into a settlement with the MTA, resolving a personal injury action. Upon entering into the settlement, decedent, who was receiving supplemental security income, Medicare and Medicaid due to several preexisting conditions, petitioned the court to approve and authorize the creation of a supplemental needs trust, into which the settlement proceeds would be transferred.  The petition was granted, and the MTA sent its portion of the settlement to decedent's counsel, who placed the funds in escrow pending completion of the documents creating and funding the trust.  However, decedent died before she had the opportunity to formally execute the trust documents.  Defendant-claimant, which was to be the remainderman of the trust, moved for the principal and interest that remains in the trust.

The motion court denied the motion, because decedent's failure to complete the formalities associated with setting up the trust prior to her death was fatal to the trust's existence, and the Appellate Division affirmed. Neither decedent nor the putative trustee executed or acknowledged the proposed trust agreement, and the trust was never properly funded with the settlement proceeds. Accordingly, a valid trust was never created.

Student note:  The proposed trust is a "lifetime trust" within the meaning of the EPTL, and therefore it must comply with the formality requirements of EPTL 1-2.20.

Case:  Gaines v. City of New York, NY Slip Op 02294 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A motion to dismiss, and amending a bill of particulars.

The presumed constitutionality of a statute.

Practice point:  The Appellate Division found that the motion court properly determined that plaintiff failed to demonstrate that Family Court Act § 517 was unconstitutional to the extent that it placed a limitation on the time when a child could seek a paternity test, given the state's legitimate interest in securing support for a child from those legally responsible. The limitations period is not arbitrary and capricious in that, by age 21, a parent may not be legally responsible for support.

Plaintiff also failed to provide binding legal authority for his claim that he had a constitutional right to know the identity of his biological father, given the strong presumption that his mother's husband, who was listed on his birth certificate, is his father.

Student note:  A statute is presumed constitutional, and that presumption can only be overcome by proof that is persuasive beyond a reasonable doubt.

Case:  Winkler v. Sherman, NY Slip Op -2142 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Setting up a supplemental needs trust.

A successful motion for leave to amend.

Practice point:  The Appellate Division affirmed the granting of the cross motion for leave to amend, as the proposed amendments were not palpably insufficient or patently devoid of merit, and they did not prejudice or surprise the defendants.  Without alleging new or different facts, the proposed amendments merely sought to add new theories of recovery.

Student note:  Pursuant to CPLR 3025(b), leave to amend a pleading will be freely given, provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.  The motion court will not examine the merits of the proposed amendment unless its insufficiency or lack of merit is clear and beyond any doubt.

Case:  Gallagher v. 109-02 Dev., LLC, NY Slip Op 02050 (2d Dep't 2016)

Here is the decision.

Monday's issue: The presumed constitutionality of a statute.

Perfecting an appeal by the appendix method.

Practice point:  The appeal was dismissed because the appellant failed to provide the Appellate Division with an appendix containing copies of the pleadings, the motion papers, and all of the affidavits and exhibits necessary to review the order appealed from.

Student note:  Pursuant to CPLR 5528[a][5] and 22 NYCRR 670.10-b[c][1], an appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits.

Case: Daniels v. Donohue, NY Slip Op 02049 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  A successful motion for leave to amend.

An account stated.

Practice point:  To establish its prima facie entitlement to judgment as a matter of law to recover on an account stated, a plaintiff must show that the defendant received the plaintiff's account statements for payment and retained these statements for a reasonable period of time without objection.

In the case of existing indebtedness, the agreement may be implied as well as express. An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account.

Student note:  An account stated is an agreement between the parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due.

Case:  Cach, LLC v. Aspir, NY Slip Op 02046 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Perfecting an appeal by the appendix method.

Leave to amend an answer.

Practice point:  The Appellate Division modified the order denying defendant's summary motion to dismiss in this action to recover damages for medical malpractice and lack of informed consent, granting leave to amend the answer to include the affirmative defense of discharge in bankruptcy.  The defense is neither patently insufficient nor palpably devoid of merit, and there would be little or no prejudice resulting from any delay in granting leave to amend.

Student note: Even when a defense is waived under CPLR 3211(e), it can be interposed in an answer amended by leave of court pursuant to CPLR 3025(b), as long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay, and is not palpably insufficient or patently devoid of merit.

Case:   Dixon v. Chang, NY Slip Op 01797 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  An account stated.

Theories of liability and supplemental bills of particular in a medical malpractice action.

Practice point:  Defendants made a prima facie showing, via expert opinion, that they did not depart from good and accepted medical practice in allowing plaintiff-mother to continue her pregnancy to term and inducing delivery in the 41st week, and that there was no causal connection between any alleged departure and the plaintiff-infant's condition. However, in opposing defendants' summary judgment motion, plaintiffs raised triable issues of fact, and the Appellate Division affirmed denial of defendants' motion. Plaintiffs did not assert a new theory of liability in their opposition papers. Plaintiffs' expert asserted only that the departures from good and accepted medical practice may have occurred as far back as the mother's 37th week of pregnancy, when she started showing signs of gestational hypertension, and while she was already under defendants' care.

Student note:  Although the initial bill of particulars stated the dates of the alleged malpractice]incorrectly, the supplemental bill made clear that the allegations related to the treatment of the mother before delivery.  In addition, the expert disclosure also clarified the dates in issue.

Case:  Destiny H. v. Bronx Lebanon Hosp., NY Slip Op 02033 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Leave to amend an answer.