Discovery.

Defendant served a written document demand, and, eight days later, plaintiff served a writer objection  to production, but did not specify any ground. Plaintiff did not raise the ground of privilege until five months later, and never timely objected with particularity, pursuant to CPLR 3122[a][1]. Accordingly, plaintiff waived objection based on any ground other than privilege or palpable impropriety. The only ground which plaintiff advances is 8 USC § 1367,  which is not a privilege for purposes of CPLR 3101 or waiver under CPLR 3122. Plaintiff does not assert that the document demand was palpably improper. The Appellate Division reversed the denial of the motion to compel.

Khatskevich v. Victor, NY Slip Op 03478 (1st Dep't June 18, 2020)

Here is the decision.

Conditional orders.

When a defendant fails to comply with a self-executing, conditional order striking its answer if it does not produce a witness for deposition by a date certain, the order becomes absolute, pursuant to CPLR 3126[3]. Defendant's recourse is to move to vacate the conditional order, pursuant to CPLR 5015[a].

Humble Monkey, LLC v. Rice Sec., LLC, NY Slip Op 03470 (1st Dep't June 178, 2020)

Here is the decision.

A claim of replevin.

To plead the cause of action, a plaintiff must demonstrate that it owns specified property, or is lawfully entitled to possess it, and that the defendant has unlawfully withheld the property from the plaintiff.

Stewart Family Trust LLC v. Stewart, NY Slip Op 03465 (1st Dep't June 18, 2020)

Here is the decision.

A res ipsa jury charge.

The charge merely permits the jury to infer negligence from the circumstances of the occurrence. The doctrine of res ipsa does not require sole physical access to the instrumentality causing the injury.

Galue v. Independence 270 Madison LLC, NY Slip Op 03463 (1st Dep't June 18, 2020)

Here is the decision.

Expert testimony in a medical malpractice action.

To satisfy the Frye standard, the testimony must be based on a scientific principle or procedure which is sufficiently established to have gained general acceptance. A plaintiff fails to carry this burden if it does not present supporting material such as clinical data and peer reviewed medical literature. Here, the material presented by plaintiff's proposed experts discussed the presence of involuntary fasciculations in patients who experienced hyponatremia, but who also demonstrated indicia of brain damage. Plaintiff, however, did not have brain damage, and so the material did not support plaintiff's theory of liability.

Knafo v. Mount Sanai Hosp., NY Slip Op 03462 (1st Dep't June 18, 2020)

Here is the decisi

Appellate practice.

The general rule is that an evidentiary ruling made before trial is reviewable only in connection with an appeal from the judgment rendered after trial. There is an exception if the evidence is so central to the proponent's case that its exclusion is the functional equivalent of summary judgment. Here, without the proposed evidence purporting to establish a causal link between defendant's alleged departure from accepted practice and plaintiff's permanent condition, the malpractice claim fails. The order is appealable because it limits the scope of issues for trial.

Knafo v. Mount Sinai Hosp., NY Slip Op 03462 (1st Dep't June 18, 2020)

Here is the decision.

An untimely motion to change venue.

The court providently exercised its discretion in denying the motion as untimely. Defendant was aware of the venue selection clause in its own admission agreement and the agreement, which was signed by plaintiff's decedent, was in its possession at all times. Still, defendant waited almost two years after the action was commenced before seeking a change of venue, and provided no reasonable explanation for the delay.

Brown v. United Odd Fellow & Rebekah Home, Inc., NY Slip Op 03461 (1st Dep't June 18, 2020)

Here is the decision.

CPLR 3025[b].

In the absence of sufficient evidence to establish that the proposed amendment was not specious, defendant's motion for leave to amend its answer was providently denied.

Avail 1 LLC v. Acquafredda Enters., LLC, NY Slip Op 03460 (1st Dep't June 18, 2020)

Here is the decision.

A claim for negligent hiring, supervision, and retention.

An essential element of the cause of action is that the employer knew, or should have known, of the employee's propensity for the sort of conduct that caused the injury. Here, defendant's knowledge of the employee's criminal history does not raise an issue of fact as to whether the defendant knew or should have known of her propensity to commit sexual assault. Similarly, the fact that one of defendant's supervisors confronted the employee concerning her "nodding out" and missing work did not impute to defendant actual or constructive notice that the employee had any propensity to commit sexual assault. The claim was dismissed.

Norris v. Innovative Health Sys., Inc., NY Slip Op 03456 (1st Dep't June 18, 2020)

Here is the decision.

A demand to change venue.

By failing to respond to the defendant's demand to change venue to a proper forum, the plaintiff forfeits its right to select venue.

Richardson v. City of New York, NY Slip Op 03281 (1st Dep't June 11, 2020)

Here is the decision.

An asbestos-related claim.

Oa the motion for summary judgment, defendant has the initial burden of showing unequivocally that its product could not have contributed to the causation of decedent's injury. Here, defendant only pointed to gaps in plaintiffs' proof, which is insufficient to meet its burden. Even if the burden had shifted, plaintiff raised an issue of fact, citing hearsay evidence that could be considered by the court since it was not the sole basis of the opposition.

Fischer v. American Biltrite, Inc., NY Slip Op 03277 (1st Dep't June 11, 2020)

Here is the decision.