A claim for medical malpractice.

In order to establish a physician's liability, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that the alleged departure was a proximate cause of the plaintiff's injuries. Generally, expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause. The expert witness's opinions must be based on facts in the record or personally known to the witness.

Bacchus-Sirju v. Hollis Women's Ctr., NY Slip Op 04538 (2d Dep't July 28, 2021)

Here is the decision.

Tomorrow's issue:  Appellate practice.

A prior property owner's liability.

As a general rule, liability for a dangerous condition does not extend to a prior owner of the premises. There is a narrow exception to the general rule, and there may be liability where a dangerous condition existed at the time of the conveyance, and the new owner has not had a reasonable time to discover the condition if it was unknown, or to remedy the condition once it became known.

Hayden v. 334 Dune Rd., LLC, NY Slip Op 04481 (2d Dep't July 21, 2021)

Here is the decision.

Tomorrow's issue:  A claim for medical malpractice.

CPLR 3215(f).

Where a foreclosure complaint is not verified, an application for a judgment by default must include an affidavit that sets forth proof of the facts, the default, and the amount due. Here, in support of its motion, the plaintiff submitted an affidavit of merit executed by a "Document Execution Specialist" who was employed by the plaintiff's servicing agent. The affiant asserted that she had personal knowledge of the merits of the plaintiff's cause of action based upon her review of various business records. However, since the plaintiff failed to attach the business records upon which the affiant relied, her factual assertions based on those records constitutes inadmissible hearsay, and her affidavit is insufficient to demonstrate proof of the facts constituting the claim.

Deutsche Natl. Bank Trust Co. v. Hossain, NY Slip Op 04480 (2d Dep't July 21, 2021)

Here is the decision.

Tomorrow's issue:  A prior property owner's liability.

Appellate practice.

Although no appeal lies from a judgment entered upon the default of an appealing party, pursuant to CPLR 5511, the appeal from such a judgment brings up for review those matters which were the subject of contest before the Supreme Court.

Deutsche Natl. Bank Trust Co. v. Hossain, NY Slip Op 04480 (2d Dep't July 21, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3215(f).

The doctrines of res judicata and collateral estoppel

Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that was raised, or could have been raised, in the prior proceeding. The doctrine of collateral estoppel, which applies only to parties who were either a party, or in privity with a party, to a prior action or proceeding, also bars relitigation of an issue which has necessarily been decided in that prior action or proceeding and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling. In order to establish privity with respect to either res judicata or collateral estoppel, the connection between the parties must be such that the interests of the nonparty can be said to have been represented in the prior proceeding. Although relationship alone is not sufficient to support preclusion, privity includes those who are successors to a property interest, those who control an action although not formal parties to it, and  those whose interest are represented by a party to the action. The party asserting the conclusive effect of a prior judgment has the burden to establish it.

Bravo v. Atlas Capital Group, LLC, NY Slip Op 04478 (1st Dep't July 21, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

CPLR 4528.

The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained when she slipped and fell on ice on a curb.  The defendant moved for summary judgment dismissing the complaint, invoking the storm in progress doctrine. The Supreme Court granted the motion, and the Appellate Division reversed, finding that the defendant failed to meet its initial burden as the movant. Contrary to the defendant's contention, the three pages of climatological data that it submitted in support of its motion should have been authenticated because these pages themselves did not indicate that the data contained therein was "taken under the direction of the United States weather bureau," as the statute requires.

Beaton v. City of New York, NY Slip Op 04477 (2d Dep't July 21, 2021)

Here is the decision.

Tomorrow's issue:  The doctrines of res judicata and collateral estoppel.

Dismissal of a claim as duplicative.

A claim will be dismissed as duplicative where the cause of action arises from the same facts as another cause of action and does not allege distinct damages.

Steven B. v. Westchester Day Sch., NY Slip Op 04476 (2d Dep't July 21, 2021)

Here is the decision.

Subject matter waiver of a privilege.

There is a waiver when a party affirmatively puts the subject matter of its own privileged communication at issue in the litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information. However, the fact that privileged communications may contain information that is relevant to issues that are being litigated does not, without more, put the contents of the privileged communication itself at issue.

U.S. Bank Natl. Assn. v. Lightstone Holdings LLC, NY Slip Op 04537 (1st Dep't July 22, 2021)

Here is the decision.

Tomorrow's issue:  Dismissal of a claim as duplicative.

CPLR 3211(a)(7).

In considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, the court must afford the pleading a liberal construction, accept all facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Steven B. v. Westchester Day Sch., NY Slip Op 04476 (2d Dep't July 21, 2021)

Here is the decision.

Tomorrow's issue:  Subject matter waiver of a privilege.

A claim for tortious interference with contract.

The cause of action requires the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement, without justification, of the third-party's breach of the contract, actual breach of the contract, and damages resulting therefrom, New York law also recognizes the tort of interference with prospective contracts.

MUFG Union Bank, N.A. v. Axos Bank, NY Slip Op 04414 (1st Dep't July 15, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3211(a)(7).

A claim for fraudulent misrepresentation.

No fraud action may be maintained against a defendant for an alleged misrepresentations made by the defendant to a third party where the third party did not communicate any negative information to the plaintiff. 

Loreley Fin. (Jersey) No. 28, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith Inc., NY Slip Op 04413 (1st Dep't July 15, 2021)

Here is the decision.

Tomorrow's issue:  A claim for tortious interference with contract.