Summary judgment in a medical malpractice action.

The injury itself cannot be the only basis for the finding of a departure from the accepted standard of medical practice.

Henry v. Duncan, NY Slip Op 00960 (1st Dep't February 7, 2019)

Here is the decision.

Contradictory testimony.

Generally, contradictions in the respective parties' testimony raise credibility issues for the trier of fact to resolve. However, where a party's deposition testimony is demonstrably false, it may be rejected as incredible as a matter of law.

Carthen v. Sherman, NY Slip Op 00954 (1st Dep't February 7, 2019)

Here is the decision.

Medical experts.

An expert does not have to be a specialist in order to testify regarding accepted practices in a particular field of medicine. However, where the testimony is outside the witness's area of specialization, a foundation must be laid to support the opinion's reliability.

Simpson v. Edghill, NY Slip Op 00923 (2d Dep't February 6, 2019)

Here is the decision.

Spoliation of evidence.

Sanctions may be imposed on a showing that the party in control of the evidence had an obligation to preserve it; that the evidence was destroyed with a culpable state of mind; and that the destroyed evidence was relevant to the extent that a trier of fact could find that the evidence would support the other party's claim or defense.

Sarris v. Fairway Group Plainview, LLC, NY Slip Op 00922 (2d Dep't February 6, 2019)

Here is the decision.

CPLR 3212(f).

Summary judgment will not be denied as premature where the affirmative defenses are precluded.

Bernstein v. Dubrovsky, NY Slip Op 00835 (1st Dep't February 5, 2019)

Here is the decision.

CPLR 217(1).

The four-month limitations period for article 78 claims applies to a plenary action to review the Police Pension Fund's administrative determination of an officer's vesting date.

Toolasprashad v City of New York, NY Slip Op 00825 (1st Dep't February 5, 2019)

Here is the decision.

CPLR 3018(b).

Practice point:  The defense of lack of standing in an action to foreclose a mortgage is waived if the defendant does not raise it in a pre-answer motion to dismiss or as an affirmative defense.

BAC Home Loans Servicing, LP v. Alvarado, NY Slip Op 00584 (2d Dep't January 30, 2019)

Here is the decision.

Legal malpractice.

Practice point:  An attorney cannot be found liable for failing to act outside the scope of the retainer agreement.

Attallah v. Milbank, Tweed, Hadley & McCloy, LLP,  NY Slip Op 00583 (2d Dep't January 30, 2019)

Here is the decision.

Conversion.

Practice point:  The conversion of intangible property is not actionable.

Austin v. Gold, NY Slip Op 00677 (1st Dep't January 31, 2019)

Here is the decision.

CPLR 5015(a)(3).

The court may vacate a judgment or order on the ground of an adverse party's fraud, misrepresentation, or other misconduct.

U.S. Bank, N.A. v. Robinson, NY Slip Op 00633 (2d Dep't January 30, 2019)

Here is the decision.

CPLR 7511(b).

The statute does not extend to vacatur or modification of the arbitration award on the sole ground that the arbitrators exceeded their authority by granting relief that was not specifically demanded in defendant's statement of claim.

Practice point:  The language of arbitration demands is not subject to the strict standards of construction applicable to formal court pleadings.

Chef Chloe, LLC v. Wasser, NY Slip Op 00571 (1st Dep't January 29, 2019)

Here is the decision.