Discovery disputes.

Resolution of discovery disputes and the nature and degree of any penalty to be imposed, pursuant to CPLR 3126, is within the sound discretion of the motion court. When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court's discretion to strike or dismiss a pleading. The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time

Here, the plaintiff's repeated failure to appear for a deposition, in violation of multiple Supreme Court orders, coupled with his failure to demonstrate a reasonable excuse for that failure, supports an inference that his conduct was willful and contumacious. It was a provident exercise of the court's discretion to grant the defendant's motion to strike the complaint.

Sheikh v. Poplardo, NY Slip Op 04753 (2d Dep't July 27, 2022)

Here is the decision.

Failure to appear at a hearing.

A party seeking to vacate an order entered upon his failure to appear at a hearing must demonstrate a reasonable excuse for the default and a potentially meritorious claim or defense to be raised at the hearing, pursuant to CPLR 5015[a][1]. The motion court has to discretion to determine what is a reasonable excuse, and the court may accept law office failure, pursuant to CPLR 2005. Mere neglect is not a reasonable excuse.

Here, the plaintiff attributed its failure to appear on the adjourned hearing date to law firm neglect and lack of diligence in properly calendaring the adjournment. This is not a reasoable excuse, and the motion to vacate is denied.

Residential Mtge. Loan Trust v. Battle, NY Slip Op 04750 (2d Dep't July 27, 2022)

Here is the decision.

Legal malpractice.

A plaintiff seeking to recover damages for legal malpractice must prove that the defendant-attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. A defendant seeking summary judgment dismissing the claim must establish, prima facie, that he did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages. In order to establish causation, a plaintiff must show that he would have prevailed in the underlying action, or that, but for the lawyer's negligence, he would not have incurred any damages.

Here, the plaintiff retained the defendant-law firm to represent her in a personal injury action against the driver of the car that struck her while she was leaving work. After the plaintiff became dissatisfied with the firm's representation of her, she discharged the firm. Thereafter, the plaintiff applied for Workers' Compensation benefits, but the claim was denied as time-barred because it was filed more than two years after the accident. The plaintiff alleges that the firm committed malpractice because it failed to file for Workers' Compensation benefits on her behalf and misadvised her regarding her right to file a Workers' Compensation claim. 

The firm demonstrated, prima facie, that the plaintiff would not have prevailed in her claim for Workers' Compensation benefits. The evidence established that the underlying accident was related to a risk shared by the general public, as opposed to a special hazard connected to the plaintiff's employment. The plaintiff failed to raise a triable issue of fact, and the firm's summary judgment motion dismissing the complaint is granted.

Provenzano v. Cellino & Barnes, P.C., NY Slip 04749 (2d Dep't July 27, 2022)

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Liquidated damages.

Whether a liquidated damages provision in a contract is an unenforceable penalty is a question of law for the court. The party seeking to avoid liquidated damages has the burden to prove that they are an unenforceable penalty. If the amount is grossly disproportionate to the probable loss, the provision is a penalty, and courts will not enforce it.  In the absence of any countervailing public policy concerns, freedom of contract prevails in an arm's length transaction between sophisticated parties.

Seymour v. Hovnanian, NY Slip Op 04705 (1st Dep't July 26, 2022)

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Appellate practice.

There is no appeal as of right from an order that is not made on notice.

Chen v. Romona Keveza Collection LLC, NY Slip Op 04702 (1st Dep't July 26, 2022)

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In this foreclosure action, the plaintiff's mailing of a 90-day notice did not comply with RPAPL 1304. Although defendants failed to raise this point before the motion court, the issue of plaintiffs' strict compliance with the statute was before the motion court and the noncompliant nature of the notice may be addressed on appeal, as the deficiency is apparent on the face of the record and could not have been avoided if it had been brought to the court's attention at the time.

U.S. Bank N.A. v. Maioriello, NY Slip Op 04706 (1st Dep't July 26, 2022)

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Plaintiff's failure to appear at a conference.

In order to vacate a default in appearing at a scheduled court conference, the plaintiff must demonstrate both a reasonable excuse and a potentially meritorious cause of action. The court may accept law office failure as a reasonable excuse where there is a detailed and credible explanation. Mere neglect is not a reasonable excuse.

Bambrick v. City of New York, NY Slip Op 04617 (2d Dep't July 20, 2022)

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A premises liability action.

Prroperty owners and parties in possession or control of real property have a duty to maintain the property in a reasonably safe condition. In moving for summary judgment, the defendant has the initial burden of making a prima facie showing that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it. There is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. Whether the condition is dangerous or defective depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury, precluding summary dismissal.

R.B. v. Sewanhaka Cent. High Sch. Dist., NY Slip Op 04616 (2d Dep't July 20, 2022)

Here is the decision.

Vacating a default.

A defendant seeking to vacate a default in answering a complaint, pursuant to CPLR 5015(a,) must show both a reasonable excuse for the default and the existence of a potentially meritorious defense. Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits.

6 Crannell St., LLC v. Urban Green Equities, LLC, NY Slip Op 04613 (2d Dep't July 20, 2022)

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A hospital's liability for a physician's actions.

Under the doctrine of respondeat superior, the hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the scope of their employment, but not for negligent treatment provided by an independent physician, as when the physician is retained by the patient. However, the hospital may be vicariously liable for the treatment provided by an independent physician if the patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the plaintiff's choosing, or if the nonemployee physician acts as an agent of the hospital or the hospital exercises control over the physician.

Vargas v. Lee, NY Slip Op 04661 (2d Dep't July 20, 2022)

Here is the decision.

Amending a pleading.

Pursuant to CPLR 3025(b), defendants may amend their answer to include a new defense "at any time by leave of court or by stipulation of all parties." The determination to permit or deny an amendment is committed to the sound discretion of the trial court. Leave should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and any delay in moving to amend does not prejudice or surprise the opposing party. 

Siddiqui v. Smith, NY Slip Op 04660 (2d Dep't July 20, 2022)

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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)

Here is the decision.