Appellate practice.

The Appellate Division declines to consider arguments concerning the Labor Law 240(1)  claim, as the plaintiff abandoned it by failing to oppose that aspect of the defendants' motion for summary judgment.

Sancino v. Metropolitan Transp. Auth., NY Slip Op 03615 (1st Dep't June 25, 2020)

Here is the decision.

An insufficient petition for leave to file a late notice of claim.

The petitioner failed to show that HHC had actual notice of the claim within 90 days of its accrual, or within a reasonable time thereafter.  HHC's records of the petitioner's treatment, on their face, do not show any negligence, malpractice or injury to the petitioner, and the petitioner does not submit a physician's affirmation to make such a showing. HHC's mere possession of medical records, in and of itself, does not establish a lack of prejudice if the petition were granted. Because the petitioner offered no other basis for the lack of prejudice to HHC, the burden never shifted to HHC to show prejudice from the delay. Neither does the petitioner provide any specific information or medical evidence to support a claim that the delay was reasonable.

Matter of Atkinson v. New York City Health & Hosps. Corp., NY Slip Op 03609 (1st Dep't June 25, 2020)

Here is the decision.

Discovery of tax returns.

While compelling disclosure of tax returns is generally disfavored, the motion may be granted where, as here, the defendant demonstrates both that the specific information ordered disclosed is necessary to defend the action, and unavailable from other sources. Prior to granting the motion, the court inspected the tax returns in camera and deemed them relevant. Further, the redactions of those filings directed by the court's order ensures that discovery is narrowly tailored to the issues in controversy. Finally, the court's order does not constitute inappropriate judicial pruning, since the defendant's demand is not overbroad or burdensome, and it does not seek irrelevant material or conclusions. To the extent that plaintiffs are concerned about the use of the returns for purposes unrelated to the action, they may seek an appropriate protective order.

Currid v. Valea, NY Slip Op 03590 (1st Dep't June 25, 2020)

Here is the decision.

A claim for aiding and abetting a breach of fiduciary duty.

The claim against the corporate defendant is dismissed for failure to state a cause of action because the complaint does not allege that the corporate defendant took any distinct action independent of the underlying breaches of the two individual defendants.

Arena Riparian LLC v. CSDS Aircraft Sales & Leasing Co., NY Slip Op 03589 (1st Dep't June 25, 2020)

Here is the decision.

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.