Psychiatrist's malpractice.

Practice point:  For a psychiatrist to be held liable for malpractice based upon a decision made in connection with a patient's treatment or a decision to discharge a patient from a hospital, it must be shown that the treatment decisions represented something less than a professional medical determination, or that the psychiatrist's decisions were not the product of a careful evaluation.

Student note: A psychiatrist may not be held liable for a mere error in professional judgment.

Case: Ballek v. Aldana-Bernier, NY Slip Op 02823 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Anticipatory breach.

Injuries caused by a defective condition.

Practice point: The plaintiff must show that the landowner either created the defective condition, or had actual or constructive notice of the defect.

Student note: When a defendant-property owner lends allegedly dangerous or defective equipment to a worker who is injured during its use, the defendant moving for summary judgment must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition.

Case: Arredondo v. Valente, NY Slip Op 02821 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Psychiatrist’s malpractice.

Disqualifying a firm.

Practice point: The plaintiff sought to associate or merge with another law firm, one of which was the firm representing the defendant in this action. In discussions between the plaintiff and the firm, the plaintiff's principal allegedly disclosed certain information regarding, billing rates and the plaintiff's prior representation of the defendant's decedent. After the commencement of the instant action, the plaintiff learned that the firm was representing the defendant. The plaintiff moved to disqualify the firm, and the motion was granted.

Student note: The discussions between the plaintiff and the firm, which purportedly included matters at issue in the instant action, create the danger that confidences were disclosed, thus warranting the disqualification of the firm.

Case: Jacobs v. Parker, NY Slip Op 02818 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Injures caused by a defective condition.

Slips and falls.

Practice point: Evidence of an unremedied condition that recurred and caused prior accidents because it was not addressed can constitute constructive notice.

Student note: While strewn MetroCards constitute a recurrent condition, a court cannot impose a duty upon a municipal authority to alter its cleaning schedule or hire additional cleaners without a showing that the established scheduled is manifestly unreasonable. Where as here, a reasonable cleaning routine was established and followed, liability will not be imposed.

Case: Harrison v. New York City Tr. Auth., NY Slip Op 02753 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Disqualifying a firm.

Capacity to sue.

Practice point: Dismissal pursuant to Business Corporation Law § 1312(a), which requires the registration of a foreign corporation doing business in New York, is not jurisdictional, but, instead, affects the legal capacity to sue. Accordingly, a motion to dismiss for lack of compliance with Business Corporation Law § 1312(a) is properly brought pursuant to CPLR 3211(a)(3), not (a)(8).

Student note: The question of capacity to sue is conceptually distinct from the question of standing.

Case:  Digital Ctr. S.L. v. Apple Indus., Inc., NY Slip Op 02806 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Slips and falls.

Construing a lease.

Practice point: A proprietary lease is a valid contract that must be enforced according to its terms, and, in the interpretation of leases, the same rules of construction apply as are applicable to contracts generally.

Student note: The court found that, contrary to the co-op's arguments, none of the provisions upon which it relied supported a basis upon which it can recover, from the proceeds of the sale of the apartment, its costs for security services.

Case: Himmelberger v. 40-50 First Rd. Apts. Corp., NY Slip Op 02636 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Capacity to sue.

Bus injury cases.

Practice point: To establish a prima facie negligence case for a passenger’s injuries sustained as a result of the movement of the bus, the plaintiff must establish that the movement consisted of a jerk or lurch that was unusual or violent.

Student note: Proof that the stop was unusual or violent must consist of more than a mere characterization of the stop in those terms by the plaintiff. There must be objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the defendant’s negligence.

Case: Gioulis v. MTA Bus Co., NY Slip Op 02632 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Construing a lease.

Dismissal based on documentary evidence.

Practice point: A party seeking dismissal pursuant to CPLR 3211(a)(1), on the ground that its defense is founded upon documentary evidence, has the burden of resolving all factual issues as a matter of law, and conclusively disposing of the plaintiff's claim.

Student note: Affidavits do not constitute documentary evidence for the purposes of the motion to dismiss.

Case: Flushing Sav. Bank v. Siunykalami, NY Slip Op 02629 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Bus injury cases.

Premises security cases.

Practice point: The necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance.

Student note: While the plaintiff claimed that the defendants should have provided her with a deadbolt lock in addition to the kitchen door lock she purchased herself, she failed to submit any evidence that the original lock provided by the landlord, which she replaced, had not functioned properly or that the original lock did not constitute a minimal security measure adequate to protect her from foreseeable harm.

Case: Ferguson v. Antaeus Realty Corp., NY Slip Op 02628 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Dismissal based on documentary evidence.

Premises liability cases.

Practice point: A defendant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Student note: Although the presence of a loaded gun may constitute a dangerous condition, the mere presence of a gun in the defendant's house was not sufficient to establish, as a matter of law, the defendant's liability founded on the presence of a dangerous condition, absent proof that the defendant had actual or constructive knowledge that the gun was loaded.

Case: Abrams v. Berelson, NY Slip Op 02618 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Premises security cases.

Laches.

Practice point: The defense is unavailable to the claims of breach of contract, breach of fiduciary duty, and for the return of management fees.

Student note: Although brought together as a derivative action, these causes of action are not equitable in nature.

Case: Garber v. Stevens, NY Slip Op 02437 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Premises liability cases.