Medical malpractice actions.

The requisite elements of proof are a deviation or departure from accepted community standards of practice and evidence that the departure was a proximate cause of the plaintiff's injury. On a motion for summary judgment, the defendant-doctor must make a prima facie showing that there was no departure from good and accepted medical practice, or that, if there was, the plaintiff was not injured thereby. In opposition, the plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, demonstrating that there is a triable issue of fact. General and conclusory allegations of malpractice, unsupported by competent evidence tending to establish the elements of the claim, are insufficient to defeat the motion. In order not to be considered speculative or conclusory, expert opinions in opposition must address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record.

Shirley v. Falkovsky, NY Slip Op 04659 (2d Dep't July 20, 2022)

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A motion for summary judgment on causation.

A moving defendant cannot meet its prima facie burden by pointing to gaps or deficits in the plaintiff's case. Therefore, in order to prevail on the motion, the defendant must affirmatively prove that, as a matter of law, there was no causation.

Dyer v. Amchem Prods. Inc., NY Slip Op 04906 (1st Dep't July 19, 2022)

Here is the decision.

The limitations period in an action to foreclose a mortgage.

The action must be commenced within six years, pursuant to CPLR 213[4]. Where the mortgage debt is payable in installments, a separate cause of action accrues for each installment that is not paid, and the  limitations period begins to run on the date that each installment becomes due. However, even where a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the limitations period begins to run on the entire debt. Acceleration of a mortgage debt requires some affirmative action evidencing the holder's election to take advantage of the accelerating provision. Here, since the defendant failed to produce any evidence that the mortgage debt had been accelerated, she failed to demonstrate that the complaint was time-barred as to the recovery of any payments due, or advances made, on or after October 13, 2012.

Citibank, N.A. v. Jones, NY Slip Op 04533 (2d Dep't July 13, 2022)

Here is the decision.

Jurisdiction over an employee's negligence claim.

Primary jurisdiction regarding the applicability of the Workers' Compensation Law is vested in the Workers' Compensation Board, and the court cannot express its view on the matter pending the Board's determination as to its jurisdiction. Here, there is a question of fact as to whether the plaintiff was injured during the course of her employment, and so the court must refer the matter to the Workers' Compensation Board.

 Chin v. Doherty Enters., NY Slip Op 04532 (2d Dep't July 13, 2022)

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CPLR 4404(a).

A motion to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise. In considering the motion, the trial judge must rely on his own common sense, experience and sense of fairness and decide whether substantial justice has been done and whether it is likely that the verdict has been affected.

Bhim v. Platz, NY Slip Op 04531 (2d Dep't July 13, 2022)

Here is the decision.

A fraud on the court.

A fraud on the court involves wilful conduct that is deceitful and obstructionistic, and which injects into the judicial process misrepresentations and false information so serious that it undermines the integrity of the proceeding. In order to demonstrate fraud on the court, the nonoffending party must establish, by clear and convincing evidence, that the offending party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his adversary's defense of the action. The fraudulent conduct may include proof of fabrication of evidence, perjury, and falsification of documents, and must concern issues that are central to the truth-finding process. Generally, an isolated incident of misconduct will not rise to the level of a fraud on the court. Here, defense counsel's misrepresentation of the subject trial testimony during his summation was inexcusably careless, but it did not constitute a fraud on the court. The Appellate Division notes that  the alleged fraud occurred in the context of a summation, which does not constitute evidence.

Bhim v. Platz, NY Slip Op 04531 (2d Dep't July 13, 2022)

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CPLR 3215(f).

A plaintiff moving for leave to enter a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's failure to answer or appear.  In order to defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that there is a reasonable excuse for the default and a potentially meritorious defense.

Bank of N.Y. v. DeJohn, NY Slip Op (2d Dep't July 13, 2022)

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Contractual indemnification.

The right to contractual indemnification depends on the specific language of the contract at issue. A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances. The Appellate Division notes that, in addition, a party seeking contractual indemnification pursuant to a contract relative to the construction of a building must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor, pursuant to General Obligations Law § 5-322.

Mogrovejo v. HG Hous. Dev. Fund Co., Inc., NY Slip Op 04300 (2d Dep't July 6, 2022)

Here is the decision.

A premises liability action.

The defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the injury without engaging in speculation. Here, the defendant met his prima facie burden through the submission of the transcript of the plaintiff's deposition testimony, which demonstrated that the plaintiff was unable to identify either where on the brick path his injury occurred or what defect in the brick path, if any, caused his ankle to roll.  In opposition, the plaintiffs failed to raise a triable issue of fact. Plaintiffs' expert report failed to establish a causal link between the alleged injury and unspecified defects in the brick path that the expert observed more than four years after the injured plaintiff's accident.

Mercurio v. Dayton, NY Slip Op 04298 (2d Dep't July 6, 2022)

Here is the decision.

CPLR 3212[f].

If it appears from affidavits submitted in opposition to a summary judgment motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had. Here, plaintiff's motion on the issue of liability is denied without prejudice to renewal upon the completion of discovery.

Goldfinger v. Freeland, NY Slip Op 04295 (2d Dep't July 6, 2022)

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Discovery.

A party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records when that party has waived the physician-patient privilege by affirmatively putting his physical or mental condition in issue. However, a party does not waive the physician-patient privilege with respect to unrelated illnesses or injuries. Here, the plaintiff does not advance broad allegations of physical injury or mental anguish, does not claim exacerbation of preexisting medical conditions in his shoulder or knees, and has expressly disavowed any claim for loss of enjoyment of life, mental anguish, future earnings, or diminished wage capacity. Instead, the plaintiff's allegations and claim for damages are limited to specific injuries to his left elbow and the residual physical effects of that particular injury. Accordingly, the plaintiff has not placed in controversy either his entire medical condition or the prior injuries and medical treatment of his shoulder and knees. The Supreme Court providently exercised its discretion in denying the defendants' motion to compel.

Froehlich v. Kimco Realty Corp., NY Slip Op 04294 (2d Dep't July 6, 2022)

Here is the decision.