Late notices of claim and statutes of limitations.

Practice point:  The Appellate Division affirmed the granting of defendant's motion to dismiss the complaint.  Plaintiff, suing on behalf of her infant son, failed to serve a timely notice of her medical malpractice claim, pursuant to General Municipal Law § 50-e[1][a], and failed to seek leave to file a late notice of claim, pursuant to General Municipal Law § 5-e(5), within the applicable statute of limitations, as tolled due to the injured plaintiff's infancy, pursuant to CPLR 208.

Student note:  The fact that plaintiff served a late notice of claim before the statute of limitations had expired is without effect, because she had not obtained leave of the court.

Case:  Yessenia D. v. New York City Health & Hosps. Corp., NY Slip Op 03653 (1st Dep't May 10, 2016)

Here is the decision.

Tomorrow's issue:  The standard for documentary evidence on a motion to dismiss.

The Noseworthy doctrine and an inference of negligence.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action to recover damages after a fall.

The defendant established its prima facie entitlement to judgment as a matter of law by submitting a transcript of the plaintiff's deposition testimony, which demonstrated that the plaintiff was unable to identify the cause of her fall. In addition, the defendant submitted evidence that no dangerous conditions were observed at the location where the plaintiff fell prior to the accident.

The Appellate Division found that the Noseworthy doctrine is applicable here, as the plaintiff established that she suffered from amnesia from the accident. However, the doctrine did not relieve the plaintiff of her obligation to provide some proof from which negligence can reasonably be inferred.

Student note:  The doctrine imposes a lighter burden of persuasion on a plaintiff when the plaintiff establishes that the parties are not on an equal footing with respect to knowledge of the facts surrounding the accident.

Case:  Baterna v. Maimonides Med. Ctr., NY Slip Op 03461 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Late notices of claim and statutes of limitations.

A fall on a stairway, and a denied summary judgment motion.

Practice point:  The Appellate Division affirmed the denial of the motion, finding that defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law. Plaintiff testified at his deposition that he slipped due to a loose step on a stairway in a building owned by defendant. Any ambiguity in his testimony as to the cause of his fall is attributable to his attempt at humor and to the fact that he was testifying through an interpreter.  In addition, defendant's superintendent testified that a step was loose on that stairway, and that it was repaired on the same day that plaintiff fell. The superintendent's uncertain testimony failed to eliminate any issue of fact as to which step was repaired or the time of the repair. The affidavit of defendant's managing member differed from the superintendent's testimony as to the time and location of the repair. In any event, the managing member's affidavit cannot be considered in support of the motion, because he did not indicate that the affidavit is based on his personal knowledge of the facts.

Student note: Plaintiff submitted a non-party's affidavit that raised a fact issue as to notice.  Any discrepancy between the affidavit and the non-party's prior unsworn statement raises a credibility issue that cannot be resolved on a summary judgment motion.

Case:  Almonte v. 638 W. 160 LLC, NY Slip Op 03584 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  The Noseworthy doctrine and an inference of negligence.

The doctrine of res judicata.

Practice point: The doctrine of res judicata precludes a party from litigating a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again.

Student note:  The doctrine of collateral estoppel is a narrower species of res judicata. It bars relitigation of an issue which has necessarily been decided in a prior action and is decisive of the present action if there has been a full and fair opportunity to contest the decision now said to be controlling.

Case:  Ashley v. Ashley, NY Slip Op 03460 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  A fall on a stairway, and a denied summary judgment motion.

An award of attorneys' fees.

Practice point:  The Appellate Division affirmed the trial court's award of attorneys' fees and costs to plaintiffs, the prevailing parties in this gender-based employment discrimination action. The court was not required to reduce fees to reflect a relative lack of success, as there is no per se rule against awarding fees in excess of damages recovered, and fees may be appropriate where a party recovers only nominal damages.

Student note:  A court may discount senior attorney hours where they constitute a disprorportionate amount of time spent on the matter. While a court may award costs in the absence of receipts, the court is entitled to discount those costs it deems to be unreasonable.

Case:  Hernandez v. Kaisman, NY Slip Op 03424 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  The doctrine of res judicata.

Rear-end collisions and an inference of negligence.

Practice point:  A rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision. Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation.

Student note:  Pursuant to Vehicle and Traffic Law § 1129[a], "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."

Case:  Hartfield v. Seenarraine, NY Slip Op 03137 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  An award of attorneys' fees.

Labor Law and accidents outside New York State.

Practice point:  Plaintiff was injured by an unguarded saw blade while working at a site located in New Jersey. At the time, he was aware that the part he was fabricating was going to be installed at a Manhattan construction site owned and operated by defendants.  Plaintiff filed several claims grounded in Labor Law §§ 200, 241[6]. The Appellate Division affirmed dismissal, as the protection afforded by the Labor Law does not extend to accidents that occurs outside New York State.

Student note:  The Labor Law's protection does not apply to out-of-state accidents even if all parties are New York domiciliaries.

Case:  Osborn v. 56 Leonard LLC, NY Slip Op 03246 (1st Dep't 2016)

Here is the decision.

Monday's issue: Rear-end collisions and an inference of negligence.

Hearsay, admissibility, and hospital reords.

Practice point:  A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule if the entry is germane to the diagnosis or treatment of the patient.

Student note:  If the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is evidence connecting the party to the entry.

Case:  Berkovits v. Chaaya, NY Slip Op 03131 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Labor Law and accidents outside New York State.

Extending time and law office failure.

Practice point:  To extend the time to answer the complaint and to compel the plaintiff to accept an otherwise untimely answer, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action.  The Appellate Division determined that the Supreme Court providently exercised its discretion in rejecting the defendant's unsubstantiated explanation that lawyers he consulted, but apparently did not retain, had advised him not to answer the complaint. A defendant's claim that his attorney apparently made an erroneous assumption regarding the need to answer the complaint does not constitute a valid excuse. At most, the advice, and the defendant's decision to follow it, is a misguided strategy, not law office failure.

Student note:  While a court has the discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005), a conclusory, undetailed, and uncorroborated claim of law office failure is insufficient.

Case:  Bank of N.Y. Mellon v. Colucci, NY Slip Op 03129 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Hearsay, hospital records, and admissibility..

The termination of a forum selection clause.

Practice point:  The mere termination of a contract containing the clause does not mean that the clause is without effect .In order for a party to disregard it when the contract is terminated, there must be a clear manifestation of the parties' intent to terminate the clause along with the contract. The best evidence of what the parties intended is the plain meaning of the contract.

Student note:  Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes, particularly those involving international business agreements.

Case:  Garthon Bus. Inc. v. Stein, NY Slip Op 03102 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Extending time and law office failure.

Primary assumption of the risk.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion in this action where plaintiff seeks damages for personal injuries sustained while driving a go-kart at a track owned and operated by defendant. The Appellate Division found that the Supreme Court improvidently exercised its discretion in declining to consider the affidavit of plaintiff's expert on the ground that the expert was not disclosed until after the note of issue was filed, as there was no evidence that plaintiff's delay in retaining the expert or in serving the expert information was intentional, willful, or prejudicial to defendant, pursuant to CPLR 3101[d][1][i]. Nevertheless, the affidavit failed to raise a triable issue of fact. While the expert alleged that the go-kart did not comply with safety guidelines promulgated by the American Society for Testing and Materials, those guidelines are nonmandatory, and insufficient to raise a triable issue of fact as to whether defendant was negligent.

Student note:  Defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that, under the doctrine of primary assumption of the risk, plaintiff assumed the risks inherent in driving a go-kart, including the risk of sustaining injuries in the manner in which plaintiff did in this case.  In opposition, plaintiff failed to raise a triable issue of fact as to whether defendant unreasonably increased the risk of injury above and beyond the usual dangers inherent in the sport.

Case: Augustin v. Grand Prix N.Y. Racing, LLC, NY Slip Op 02948 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  The termination of a forum selection clause.