Summary judgment in a medical malpractice action.

As there are conflicting expert opinions, defendant's summary judgment motion as to plaintiff's claim relating to postsurgical care was properly denied. Since plaintiff's expert, in opposition to defendant's motion, did not address the claims for lack of informed consent and malpractice during surgery, and plaintiff does not pursue those claims on appeal, they are dismissed. 

John v. New York City Health & Hosps. Corp., NY Slip Op 01123 (1st Dep't February 18, 2021)

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CPLR 3211(b).

On  a motion to dismiss an affirmative defense, a plaintiff bears the heavy burden of showing that, as a matter of law, the defense is without merit. The allegations in the answer must be viewed in the light most favorable to the defendant, and the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be construed liberally.

Alpha Capital Anstalt v. General Biotechnology Corp., NY Slip Op 00985 (1st Dep't February 16, 2021)

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Tortious interference.

The complaint fails to state a cause of action for tortious interference with contract, as plaintiffs have not alleged that they were parties to a contract with a third party with which defendant interfered. Neither do plaintiffs state a prima facie claim for tortious interference with business relations or economic advantage, as the essence of the cause of action involves actions directed not at plaintiffs but at third parties. Here, the alleged threats and misrepresentations were directed at plaintiffs themselves, and not at any third party.

Underwood v. Urban Homesteading Assistance (U-HAB), Inc., NY Slip Op 01020 (1st Dep't February 16, 2021)

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Timeliness of a summary judgment motion.

The Appellate Division unanimously reversed, on the law, the Order which denied defendants' motion for summary judgment dismissing the complaint, reinstated the complaint, and remanded the matter for a determination of the motion on the merits. The motion was timely since it was filed within the time period provided in the preliminary conference order. That deadline is controlling, despite the transfer to another Justice with part rules shortening the time, as there was no subsequent order or directive explicitly providing otherwise.

 Lopez v. Metropolitan Tr. Auth., NY Slip Op 00910 (1st Dep't February 11, 2021)

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Appellate practice.

Plaintiff's fraud in the factum argument involves issues of fact, and, therefore, may not be raised for the first time on appeal. 

Shilpa Saketh Realty, Inc. v. Vidiyala, NY Slip Op 00917 (1st Dep't February 11, 2021)

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Discovery of privileged information.

In these insurance coverage actions, the Appellate Division unanimously affirmed, with costs, the motion court's exercise of its broad discretion in denying the insurers' motions to compel discovery of the NFL's defense and settlement materials from the underlying action. The cooperation clauses in the insurance policies did not operate as waivers of the NFL's attorney-client and work-product privileges. Neither was there a waiver of the attorney-client privilege merely because the parties had a common interest in the outcome of the underlying actions. Nor did the NFL, by seeking coverage, put its privileged and protected information at issue.

Alterra Am. Ins. Co. v. National Football League, NY Slip Op 00900 (1st Dep't February 11, 2021)

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Court holiday.

Appellate practice.

Plaintiff's assertion that the voluntary payment doctrine, equitable estoppel, and waiver bar the accounting is improperly raised for the first time on appeal. 

U.S. Bank, N.A. v. Cordero, NY Slip Op 00819 (1st Dep't February 9, 2021)

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Waiver of arbitration.

By participating in the lawsuit for two years before filing its motion to compel arbitration, defendant waived its right to assert that the action is barred by the arbitration agreement. Defendant failed to plead the arbitration agreement as an affirmative defense, and did not produce it in response to plaintiff's discovery request. Plaintiff demonstrated prejudice, as she had already expended considerable time and resources in litigating her claims in court.

Wallace v. Tri-Med Home Care Servs., Inc., NY Slip Op 00821 (1st Dep't February 9, 2021)

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Court holiday.

911 calls and liability.

The Appellate Division unanimously reversed, on the law, the Order granting defendants' motion to dismiss the complaint. Plaintiff's allegations are sufficient to establish a special relationship between the City and the decedent, bringing her claim within the exception to the general rule that a municipality may not be held liable to a person injured by the breach of a duty that it owes to the general public, such as the duty to provide ambulance service. The allegation that the 911 operator told plaintiff that "we are on our way" is sufficient to establish defendants' assumption of an affirmative duty to act on the decedent's behalf. Plaintiff sufficiently alleged justifiable reliance on the call operator's statement through an affidavit submitted in opposition to defendants' motion in which she listed several additional actions she would have taken to secure help but for the operator's assurance.

Xenias v. City of New York, NY Slip Op 00647 (1st Dep't February 4, 2021)

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