Defendant, a board-certified obstetrician/gynecologist who treated plaintiff during her pregnancy, was unexpectedly late in getting to the hospital to attend to plaintiff's labor and delivery. Nonetheless, he confirmed by telephone that an on-call attending obstetrician and the chief obstetrical resident were caring for the patient pending his arrival. Defendant arrived at the hospital shortly after the birth, when plaintiff was undergoing the repair of a perineal laceration which she had sustained during delivery.

After the delivery, plaintiff began to experience severe urinary incontinence, which has now been resolved, and approximately one year later she began to suffer from fecal incontinence. Approximately two-and-one-half years after giving birth, she underwent surgery to repair a torn sphincter. Plaintiff claimed that she continues to suffer from permanent fecal incontinence caused by nerve damage, and she contended that, with proper management by an experienced obstetrician/gynecologist, the perineum tear could have been avoided. Plaintiff argued that, had defendant been present, his experience might have led him to perform an episiotomy, which would have prevented the perineum tear that extended into her anal sphincter. Instead, she claimed, the delivery was left to an inexperienced resident, who performed a faulty repair of the perineal laceration.

The First Department dismissed the complaint, in Brown v. Bauman, which was decided on July 26, 2007. The court noted that a physician who is unable to care for the patient does not depart from the standard of care so long as the physician arranges to transfer the care of the patient to another well-qualified physician. On this record, the court determined that defendant had established, as a matter of law, his compliance with the requisite standard of care, even though there was some question as to exactly when, or even if, he specifically asked the other physicians to cover for him.

Taking the plunge and bearing the risks.

Plaintiff is an attorney and experienced investor who retained defendant to manage approximately $600,000 of plaintiff's assets. He had reviewed and completed various documents provided by defendant, including a questionnaire concerning his risk tolerance and management objective. Plaintiff's risk assessment stated that on a scale of 1 to 10, his risk comfort level was 6, with a maximum risk level of 8. His stated that his portfolio management objective was to "Beat the Market - High Risk/Return."

Plaintiff reviewed and signed an investment policy statement which provided that plaintiff's portfolio would be a moderately aggressive growth and equity portfolio, and that "the Investment Manager(s) has been given full investment discretion with respect to the portion of the Portfolio it manages to allocate among assets equities, fixed income securities and cash equivalents and to purchase and sell individual securities. Such investment discretion will be exercised consistent with the stated investment objectives, risk tolerance, goals and guidelines of the Portfolio." It went on to state, in two places, that the portfolio would be managed in a "prudent manner," and further provided that "The equity portions of the Portfolio should be well-diversified among economic sectors, industry groups, and individual securities to avoid any undue exposure in any part of the U.S. equity market."

After plaintiff's initial $599,000 investment had declined in value by 39% to approximately $365,000, he closed his account and commenced a class action on behalf of himself and all others whose investment accounts were managed by defendant. The First Department found no evidence that defendant had breached its fiduciary duty, and dismissed the complaint, in Vladimir v. Cowperthwait, which was decided on July 26, 2007.

The court noted that plaintiff was an experienced investor who habitually selected his own stocks for investment, using the services of a broker only to execute his buy and sell orders. His deposition testimony states he was looking for "growth" and that he "wanted to beat the market." The client agreement signed by plaintiff acknowledges that there was no guarantee that his investment strategy would be achieved. Plaintiff acknowledged in his examination before trial that prior to investing in the Large Cap Growth Equity Portfolio, he was provided with a list of all the companies in the portfolio, and, although he did not examine the list in detail, he noticed that some of the companies were in the technology sector and did not object to their being in the fund. He also testified that he regularly reviewed his monthly statements and repeatedly discussed them with his broker during the entire time he was involved with defendant.

Plaintiff should have seen it coming.

While plaintiff was on defendant's premises to vote in a school budget election, she allegedly fell and was injured when she failed to note the single step in a hallway leading to the gymnasium, where the voting was taking place. Plaintiff acknowledged that she had been looking at a sign on the wall just before approaching the step on which she tripped. The Second Department dismissed the complaint, in Groon v. Herricks Union Free School District, which was decided on July 10, 2007. Noting that a landowner has no duty to protect or warn against conditions which are readily observable by the reasonable use of one's senses, the court found evidence in the record, including photographs taken by the plaintiff's daughter shortly after the accident, revealing that a yellow line had been painted across the top of the step to alert passersby of the height differential, and that, adjacent to the step, there was a short ramp, allowing passersby to circumvent the step altogether.

In New York the standard is Frye.

When plaintiff was admitted to the hospital after having had a stroke, it was discovered that she had bradycardia, which is a heart rate of fewer than 60 beats per minute. Her treating physicians were convinced that the bradycardia had caused the stroke, and that it could have been prevented had a pacemaker been inserted within the previous year. The First Department dismissed the subsequent medical malpractice action, in Marso v. Novak, which was decided on July 19, 2007. Noting that plaintiff's own causation-expert testified that it is not generally accepted in the scientific community that bradycardia is a risk factor for the type of stroke plaintiff suffered, the court found that New York's Frye standard was not satisfied. The court specifically rejected plaintiff's argument that, because all other possible causes had been eliminated by testing, Frye was not implicated.

CPLR 208's insanity toll does not terminate on the appointment of a guardian, according to the First Department, in Giannicos v. Bellevue Hospital Med. Ctr., which was decided on July 19, 2007. This medical malpractice action had been tolled after a Special Referee found that the incapacitated plaintiff was unable to protect his legal rights because of an overall inability to function as the result of a stroke.

Out of sight but not off the hook.

Plaintiff-tenant was injured when she was struck by her store's roll-up security gate which, over time, had become detached from the building. The First Department denied the out-of-possession landlord's motion for summary judgment, in Hakim v. 65 Eighth Avenue, which was decided on July 19, 2007. The court noted that the damage to the security gate was allegedly caused by prolonged water exposure from a leaking roof, and that, by the terms of the lease, the landlord was responsible for repairs to both the structure and the roof.

After defendant was terminated in the wake of a scandal involving his work-unit, he sued his employer for damages, alleging that his employer had made defamatory statements blaming him for the problem.

Defendant's retainer agreement with plaintiff put a one-million dollar cap on plaintiff's hourly fees, and also allowed for a 10% "Success Fee" on eligible amounts recovered between one-million and ten-million dollars, subject to the following limitation: "The Success Fee will be computed only on amounts in excess of current vested entitlements, or entitlements to be vested by January 2006."

Defendant and his employer eventually settled, and defendant received, among other things, a five-million dollar cash payment. The First Department determined that plaintiff is entitled to a success fee based on that payment, in Kaplan v. Jones, which was decided on July 19, 2007.

Characterizing the success fee-language as unambiguous, the court categorically rejected defendant's argument that the word "entitlements" refers to any compensation defendant would have received had his employment not been terminated, and that, since he would have been compensated more than five-million dollars had he not been fired, no success fee was owing.

Their number's up.

Defendant-newspaper published a string of numbers which participants in its "Scratch n' Match" daily game were to scratch off on their game cards, potentially revealing prizes up to the sum of $100,000. The game's official rules were printed on the reverse side of each game card. The following day, the newspaper published a notice saying that the numbers had been mistaken. Relying on the incorrect numbers, though, several participants claimed to have won the $100,000 prize.

Pursuant to the contest's rules, the newspaper then conducted a random drawing from among those claimants to determine the actual winner. The Second Department dismissed the losers' suit, in Sargent v. New York Daily News, which was decided on July 17, 2007.

The court noted that the rules contained a provision stating, "[i]f due to a printing, production or other error, more prizes are claimed than are intended to be awarded for any prize level per the above, the intended prizes will be awarded in a random drawing from among all verified and validated prize claims received for that prize level." The rules also provided that, "[i]n no event will more than the stated number of prizes be awarded." The rules set forth how many prizes at each prize level would be awarded each week, and specified that there was to be one $100,000 prize awarded weekly. The rules further provided that "[i]n the event of printing, production or other error, or the distribution of an irregular game card occurs," the newspaper would not be liable. Finally, the rules specified that participants agreed to be bound by the official rules.

The court cited hornbook law that contest rules constitute a contract offer and that a participant's entry into the contest constitutes an acceptance of that offer, including all of its terms and conditions.

The building owner's getting off here.

Plaintiff was injured when, just after the doors closed, an elevator suddenly fell four floors. The First Department dismissed the complaint as against the building's owner, in Hodges v. Royal Realty Corp., which was decided on July 12, 2007.

The court noted that the doctrine of res ipsa loquitur may be invoked in an action involving a malfunctioning elevator, but only if it can be established that (1) the elevator's sudden fall would not ordinarily occur absent negligence; (2) when the elevator fell, it was within the defendant's exclusive control; and (3) plaintiff did not contribute to the elevator's fall in any way.

Here, the court found that the owner did not have exclusive control of the elevator. The court pointed to a service contract which required defendant-elevator company to maintain the elevators in a proper and safe operating condition, perform periodic inspections, repair all defects and provide on site a full-time elevator mechanic whose sole responsibility was to care for and maintain the building's elevators.

The United States Bankruptcy Court authorized the debtor to bring this action, on behalf of the bankruptcy trustee, to recover damages for legal malpractice against the debtor's original attorneys. Initially, the debtor, and not the bankruptcy trustee, was named as a party-plaintiff. The Second Department held that the inadvertent designation was a mere mistake which could be corrected pursuant to CPLR 2001, in Silverman v. Flaum, which was decided on July 10, 2007.

The court found that defendants would not be prejudiced, and noted that the statute authorizes the court to correct a mistake, omission, defect, or irregularity at any stage of an action.

They should have called housekeeping.

Plaintiff allegedly slipped and fell on a green substance on the floor of defendant's store. Although there were no witnesses to the accident, an assistant store manager observed the green substance on the floor shortly after plaintiff's fall and, in her accident report, noted that it had come from a small bottle of fragrance oil which had fallen from a plastic display attached to a shelf.

In Chetuti v. Wal-Mart Stores, Inc., which was decided on July 10, 2007, the Second Department found this sufficient to raise a triable issue of fact as to whether defendant had created the alleged dangerous condition or, in the alternative, whether defendant had actual or constructive notice of its existence.

The First Department denied petitioner's request for a preliminary injunction enjoining respondents from importing and marketing a certain product, and from disclosing or using any confidential information which had been obtained in their business relationship, in OraSure v. Prestige Brands Holdings, which was decided on July 12, 2007.

The court noted that, in order to merit injunctive relief, petitioner was required to make a clear showing that (1) it would likely succeed on the merits, (2) it will suffer irreparable injury unless the relief sought is granted, and (3) the balancing of equities is in its favor. Here, petitioner's damages were calculable, and, as a matter of law, a monetary harm which can be compensated by damages does not constitute irreparable injury.

Made in New York.

Defendant is a Pennsylvania lawyer who was retained by a New York resident to represent him in a probate matter in Connecticut. Defendant collected more than $400,000 in legal fees and allegedly appropriated a $200,000 "success fee" from the proceeds of a settlement which defendant procured. After his death, the client's estate commenced this action to recover a substantial portion of the legal fees, alleging that they were excessive. The estate also seeks the return of the success fee. The First Department denied defendant's motion to dismiss for lack of personal jurisdiction, in Scheuer v. Schwartz, which was decided on July 5, 2007. Even though the retainer agreement was not executed in New York, the court found that, in performing the agreement, defendant's contacts with New York were sufficient to merit long-arm jurisdiction pursuant to CPLR 302(a)(1). The court noted that defendant made at least ten trips to New York in connection with the matter, and that, among other things, he reviewed documents in the offices of his client's former attorneys and had several meetings with both his client and his client's adversaries in the probate proceeding. Defendant billed approximately 70 hours for work performed in New York, representing approximately 8% of the approximate 824 total hours billed for the Connecticut matter.

In this personal injury matter, plaintiff offered a new theory of negligence by way of a supplemental bill of particulars, which was served without leave of the court and after the note of issue had been filed. The Second Department said it was too late, in Medina v. Sears, Roebuck, which was decided on June 26, 2007. Noting that a plaintiff may successfully oppose a summary judgment motion by relying on an unpleaded cause of action which is supported by plaintiff's submissions, the court said that the "protracted delay" in this instance warranted dismissal.

Extortion with an E.

There is no private cause of action for extortion or attempted extortion, according to the First Department, in Minnelli v. Soumayah, which was decided on June 28, 2007. In dismissing that cause of action, in which plaintiff had alleged that defendant had compelled her to deliver money to him by threatening physical harm to plaintiff and her employees, the court observed that "extortionate behavior, coercion and duress may be elements of a cause of action for tortious interference with contract or unjust enrichment." The court also said that a mere threat, without something forcing the other party to give in to a further demand, is insufficient to make out a cause of action sounding in economic duress.

Pursuant to a contract, plaintiff markets, sells, and distributes defendant's beverages to retail outlets in a specifically designated geographic area of Manhattan. He brought a breach of contract action after defendant entered into agreements to directly sell its products to public schools and certain municipal entities. The Second Department dismissed the complaint, in McGuckin v. Snapple Distribs., Inc., which was decided on June 26, 2007. The court found that the contract, by its express terms, allowed defendant to market, sell, and distribute products to institutional accounts such as public schools and municipal entities. That was enough for the court, which said that the contact should be given effect according to its plain meaning.

Plaintiff was stuck in an elevator in the building where he worked as a porter. Against the building's superintendent's express directions, plaintiff climbed out of the elevator and was injured when the elevator began to move again. Plaintiff was terminated and, at an unemployment hearing, it was determined that plaintiff had been fired for misconduct in disobeying his building superintendent's direct order. That finding did not preclude plaintiff's suing for his injuries, though, according to the First Department, in Pelzer v. Transel Elevator & Electric, which was decided on June 28, 2007. The court noted that administrative agency determinations are binding in subsequent legal actions for purposes of issue preclusion, but only as to the precise issues which the agency decided. Here, the agency's finding was limited to the matter of plaintiff's misconduct, and did not address the issues of sole proximate cause and assumption of risk, which were pivotal to the subsequent lawsuit.

Plaintiff alleged (1) a failure to pay commissions as required by his written employment contract with defendant-LLC, a New York corporation with its principal place of business in New York City, and (2) certain violations of the Labor Law. In Fieldman v. Smart Choice Communications, which was decided on June 28, 2007, the First Department said that the contract's New Jersey choice-of-law provision runs to the Labor Law causes of action since they did not assert "an extra-contractual wrong, such as payment of commissions in accordance with the contract but in violation of section 191(a)(1)(c) because made less frequently than once a month."

What's in a name?

Avon did not misappropriate the name of the landlord's building in violation of the parties' agreement, according to the First Department, in Avon Products v. Solow, which was decided on June 28, 2007. "Although two of the four documents relied upon by Solow tend to show that Avon did refer to the building as the 'Avon Building' in communications to persons outside the Avon organization, that is not sufficient to establish Avon's misappropriation of the building's name. The remaining two documents, letters to Diesel Construction and the New York City Board of Trade, are inconsequential and could not reasonably have been viewed as tipping the balance in Solow's favor."

There is no case posted today because of the holiday. Happy July 4th to my fellow Vietnam veterans, and to veterans of every stripe, and to the men and women who serve to keep us free.

Plaintiff was employed by a nonparty subcontractor at a construction site when, acting on his employer's instructions, he used a wood beam to support the jib of a crane, and was injured when the beam struck him. The Second Department dismissed the complaint against the general contractor, in McLeod v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., which was decided on June 26, 2007. The court said that, to be liable under Labor Law § 200 or for common law negligence, a general contractor must have actually exercised supervision and control over the work performed at the site. Here, the court found only general supervisory authority for the purpose of overseeing the progress of the work and inspecting the work product, which is insufficient to impose liability.

The First Department found that jurisdiction was demonstrated by plaintiff's affidavit of service showing delivery to a person of suitable age and discretion
at -- and a mailing to -- a place which defendant acknowledged was his place of business, in Kunio Takeuchi v. Silberman, which was decided on June 28, 2007. The court found it of no consequence that, for reasons of health, defendant may not have actually been at his place of business for some four months prior to service, and that plaintiffs never tried to ascertain whether he was available to receive service there. "Unlike CPLR 308(4), CPLR 308(2) does not require preliminary diligent attempts at alternative methods of service."