Admissibility of medical records in a personal injury action.

The defendant waived his right to object to the admission of the records as business records, as he failed to timely object after having been served with the plaintiff's notice of her intention to enter the documents into evidence, pursuant to CPLR 3122-a. The testimony of the office manager laid a proper foundation for the admission of the records, pursuant to CPLR 4518[a].

Benguigui v. Racer, NY Slip Op 05318 (2d Dep't October 6, 2021)

Here is the decision.

Termination of an at-will employee.

The Appellate Division affirmed, with costs, the order that granted the defendants' motion for summary judgment, dismissing the complaint. The plaintiff applied for a job at the defendants' restaurant, and was offered paid training sessions in contemplation of potential employment. The plaintiff alleges that she was wrongfully discharged when the defendants cancelled the training sessions. It is well-settled in New York that there is no cause of action for an at-will employee's wrongful discharge unless the termination of employment is constitutionally impermissible or statutorily proscribed, or unless there is an express limitation in an employment contract. Here, the defendants established  their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was, at best, an at-will employee and that her employment was not impermissibly terminated. In opposition, the plaintiff failed to raise a triable issue of fact.

Babalola v. Terry Vegetarian, LLC, NY Slip Op 05317 (2d Dep't October 6, 2021)

Here is the decision.

CPLR 3101(c).

Records which are attorney work product are specifically protected from disclosure. The records cannot be redacted under the Freedom of Information Law (FOIL), which permits redactions of records only under the personal privacy exemption.

Here is the decision.

A nonjusticiable controversy under the First Amendment.

The Appellate Division affirmed dismissal of this action.  Although the plaintiff contends that the $230,000 payment she made to defendants five years before the action was commenced should not be considered a tithe, the record shows that the payment was, in fact, a tithe, and that plaintiff made it voluntarily. The $230,000 check made out to the defendant stated "tithe" in the memo section. The issues of the plaintiff's motivation for tithing and the proper amount of the tithe necessarily implicate the interpretation of religious doctrine ,and cannot be resolved through the application of neutral principles of law.

Wilson v. Christ Alive Christian Ctr., NY Slip Op 05315 (1st Dep't October 5, 2021)

Here is the decision.

A cause of action for conversion.

The plaintiff must show (1) legal ownership or an immediate right of possession to tangible personal property or specific money, and (2) that the defendant exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff's right. There is conversion when funds designated for a particular purpose are used for an unauthorized purpose.

Alpha/Omega Concrete Corp. v. Ovation Risk Planners, Inc., NY Slip Op 05113 (2d Dep't September 29, 2021)

Here is the decision.

Appellate practice.

The appeal from the order which granted plaintiff's motion to proceed pseudonymously was dismissed.  The death of a party divests a court of jurisdiction to conduct proceedings in an action until a proper substitution has been made pursuant to CPLR 1015(a). While the parties need not renew their motions, proper substitution of a defendant must be made before the motion is decided. Since the order was issued after a defendant's death and without proper substitution, the Appellate Division does not have jurisdiction to hear and determine the appeal.

Thomas v. Rubin, NY Slip Op 05112 (1st Dep't September 28, 2021) 

Here is the decision.

CPLR 3215(c).

As set forth in the statute, "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action." The purpose of CPLR 3215(c) is to prevent parties who have asserted claims from unreasonably delaying the termination of actions, and to avoid inquests on stale claims.

Federal Natl. Mtge.Assn. v. Kahana, NY Slip Op 05024 (2d Dep't September 22, 2021)

Here is the decision.

CPLR 2214(b).

The defendant's opposition to the plaintiffs summary judgment motion was due to be served no later than seven days prior to the return date, but the defendant served his opposition six days after the return date. The Appellate Division determined that the Supreme Court providently exercised its discretion in declining to consider the defendant's opposition, as the defendant failed to provide a valid excuse for the late service.

Deutsche Bank Natl. Trust Co. v. McEnery, NY Slip Op 05023 (2d Dep't September 22, 2021)

Here is the decision.

Service of process.

The plaintiff had the burden of proving that jurisdiction was obtained over the defendant by proper service of process. A process server's affidavit of service constitutes prima facie proof of service.

Chase Home Fin., LLC v. Kahana, NY Slip Op 05022 (2d Dep't September 22, 2021)

Here is the decision.

Summary judgment in a medical malpractice action.

A physician moving for summary judgment dismissing the complaint must establish, prima facie, either that there was no departure from accepted standards of medical care, or that any departure was not a proximate cause of the plaintiff's injuries. On this showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden.

G. M. C. v. O'Sullivan, NY Slip Op 05020 (2d Dep't September 22 2021)

Here is the decision.

Contractual indemnification in a personal injury action.

The party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.

Barcliff v. Schindler El. Corp., NY Slip Op 05019 (2d Dep't September 22, 2021)

Here is the decision.