Motions to withdraw as counsel.

Practice point: Where defendant's insurer in a personal injury action issues a contested disclaimer of coverage in the midst of litigation, it is inappropriate to grant a motion to withdraw by the attorney the insurer has provided.

Student note: The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court, and the court's decision should not be overturned on appeal absent a showing of an improvident exercise of discretion.

Case: McDonald v. Shore, NY Slip Op 07277 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Defective tree-wells.

Leading questions, and assuming facts not in evidence.

Practice point: The Appellate Division found that plaintiff's counsel's questions were not leading because they did not suggest the answer that counsel wished the expert to give. Instead, they were merely calculated to draw the witness' mind to the subject of inquiry.

Student note: The questions did not assume facts not in evidence because they were based either upon facts testified to by the defendant herself or upon opinions previously expressed by the expert. The jury was entitled to accept or reject both the underlying facts and the underlying opinions upon which an answer to these questions would have been based.

Case: Heines v. Minkowitz, NY Slip Op 07273 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motions to withdraw as counsel.

Cashiers' checks.

Practice point: A cashier's check is the primary obligation of the issuing bank which, acting as both drawer and drawee, accepts the check upon its issuance.

Student note: Once a bank issues a cashier's check, it cannot thereafter stop payment, even upon a request from its customer, unless there is evidence of fraud, or evidence that the check was lost, stolen, or destroyed.

Case: Golden v. Citibank, N.A., NY Slip Op 07272 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Leading questions, and assuming facts not in evidence.

Fiduciary relationships, and a right to an accounting.

Practice point: A fiduciary relationship arises when one is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation. It is grounded in a higher level of trust than normally present in the marketplace between those involved in arm's-length business transactions., and so a conventional business relationship, without more, is insufficient. Rather, a plaintiff must make a showing of special circumstances that could have transformed the parties' business relationship to a fiduciary one, such as control by one party of the other for the good of the other.

Student note: The right to an accounting rests on the existence of a trust or fiduciary relationship regarding the subject matter of the controversy at issue.

Case: DiTolla v. Doral Dental IPA of N.Y., LLC, NY Slip Op 07266 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Cashier’s checks.

Motions for leave to renew.

Practice point: The motion must be based upon new facts not offered on the original motion that would change the prior determination, pursuant to CPLR 2221[e][2]. The new or additional facts either must have not been known to the party seeking renewal, or may, in the court’s discretion, be based on facts known to the party seeking renewal at the time of the original motion.

Student note: However, in either instance, a reasonable justification for the failure to present such facts on the original motion must be presented, pursuant to CPLR 2221[e][3].

Case: Deutsche Bank Trust Co. v. Ghaness, NY Slip Op 07265 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Fiduciary relationships, and a right to an accounting.

Medical malpractice, and experts' opinions.

Practice point: When a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered.

Student note: Even if the defendant-physician did depart from accepted practice, plaintiff cannot defeat summary judgment if the expert’s assertion that this departure proximately caused the plaintiff's injuries is purely speculative.

Case: Bey v. Neuman, NY Slip Op 07262 (2d Dept. 2012).

 Here is the decision.

Monday’s issue: Motions for leave to renew.

Court holiday.

The courts are closed to mark Thanksgiving Day.

Tomorrow's issue: Medical malpractice, and experts' opinions.

More than one proximate cause, and comparative fault.

Practice point: There can be more than one proximate cause of an accident.

Student note: Therefore, the proponent of a summary judgment motion has the burden of establishing freedom from comparative fault as a matter of law.

Case: Antaki v. Mateo, NY Slip Op 07261 (2d Dept. 2012).

Here is the decision.

Friday’s issue: Medical malpractice, and experts’ opinions.

Liability when a non-owner is driving.

Practice point: Proof of ownership of a motor vehicle creates a rebuttable presumption that the driver was using the vehicle with the owner's permission, express or implied.

Student note: A finding of constructive consent requires a consensual link between the negligent operator and one whose possession of the car was authorized.

Case: Fiduciary Ins. Co. of Am. v. Jackson, NY Slip Op 07200 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: More than one proximate cause, and comparative fault.

Collapsed ceiling, and late discovery demands.

Practice point: Plaintiff's complaints of the collapse of her bathroom ceiling and portions of her living room ceiling 15 months before the collapse of the living room ceiling raise an issue of fact whether defendants were on constructive notice of a defect. To the extent the record is ambiguous as to the cause of the ceiling collapse, there are issues of fact as to defendants' duty to inspect the ceilings and the applicability of the doctrine of res ipsa loquitur.

Student note: Since defendants did not disclose the existence of documents previously ordered produced, or the identity of a witness with knowledge until their deposition just before the note of issue was filed, plaintiff's last-minute renewed demand for this discovery was justified.

Case: Lisbey v. Pel Park Realty, NY Slip Op 07212 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Liability when a non-owner is driving.

Liability for injuries to a special employee.

Practice point: Plaintiff was employed as a contract travel nurse at the defendant-hospital, and, at the cafeteria during her assigned lunch-time, she slipped and fell while waiting in line to pay one of the cashiers.
A special employee is one who is transferred, for a limited time of whatever duration, to the service of another. When an employee is eligible to receive Workers' Compensation benefits from his general employer, a special employer is shielded from any action at law commenced by the employee, pursuant to Workers' Compensation Law § 29[6].

Student note: The key to the determination is a fact-intensive inquiry into who controls and directs the manner, details, and ultimate result of the employee's work.

Case: Warner v. Continuum Health Care Partners, Inc., NY Slip 07211 (1st Dept. 2012).

Monday’s issue: Collapsed ceiling, and late discovery demands.

Suing the Transit Authority.

Practice point:Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against the Transit Authority, pursuant to General Municipal Law § 50-e[1][a]; § 50-i[1][a], and Public Authorities Law § 1212[2]. In determining whether to extend the time to serve, the court will consider whether the public corporation received actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter; whether the claimant has a reasonable excuse for the failure to serve a timely notice; and whether the delay would substantially prejudice the public corporation in its defense on the merits.

Student note: Here, petitioner failed to demonstrate that the Transit Authority acquired actual knowledge of the essential facts constituting the claim within 90 days after the accident or within a reasonable time thereafter. Even though the petitioner consulted with an attorney and served a notice upon the City of New York approximately one week after the accident, he did not serve a notice upon the Transit Authority or commence this proceeding until more than four months after the consultation. The Transit Authority did not have any knowledge of the petitioner's accident and injury, or the legal theory on which liability was predicated against it prior to being served with papers in the instant proceeding. Furthermore, the petitioner failed to demonstrate a reasonable excuse for his delay. The petitioner's excuse that he only recently came to realize that he may have a claim against the Transit Authority was unacceptable. Finally, the petitioner failed to show that the delay had not deprived the Transit Authority of the opportunity to find witnesses promptly or otherwise conduct a timely and meaningful investigation in this matter.

Case: Abromovitz v. City of New York, NY Slip Op 07108 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Liability for injuries to a special employee.

Leave to amend to increase the ad damnum clause.

Practice point: In applying for to leave to amend the complaint to increase the ad damnum clause, pursuant to CPLR 3025[b], a petitioner is required to submit a physician's affirmation (1) showing a causal connection between her condition and the accident, and (2) specifying the claimed change in her condition, including any injuries that had not been previously considered, or the extent to which the condition had worsened.

Student note: Here, the application was denied because petitioner submitted a physician's affirmation which failed to establish that the increased injuries to her lower back which required surgery were causally related to the subject motor vehicle accident, as it failed to account for the fact that the petitioner had claimed to have injured her lower back in accidents that had occurred both prior and subsequent to the subject motor vehicle accident.

Case: Matter of Sealy v. Morris, NY Slip Op 07116 (2d Dept. 2012).

Here is the decision.

Tomorrow's issue: Suing the Transit Authority.

Liquidated damages provisions.

Practice point: A contract clause is one for liquidated damages if the amount of actual loss is incapable or difficult of precise estimation, and the stipulated amount of damages bears a reasonable proportion to the probable loss. Whether a contractual provision represents a liquidated damages provision is a question of law.

Student  note: Liquidated damages provisions will be upheld only if the amount fixed is a reasonable measure of the probable actual loss in the event of a breach. If the amount fixed is grossly disproportionate to the amount of actual damages, then the liquidated damages provision amounts to a penalty and will not be enforced.

Case: G3-Purves St., LLC v. Thomson Purves, LLC, NY Slip Op 06919 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue:   Leave to amend to increase the ad damnum clause.

Court holiday.

The courts are closed to mark Veterans Day.

To all Veterans, thank you for your service, no matter where or when.

Tomorrow's issue is liquidated damages provisions.

Defense based on documentary evidence.

Practice point: A defendant may move for judgment dismissing a cause of action on the ground that a defense is founded upon documentary evidence, pursuant to CPLR 3211[a][1]. The motion may be granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Student note:  Materials that clearly qualify as documentary evidence include documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable.

Case: Sands Point Partners Private Client Group v. Fidelity Natl. Tit. Ins. Co., NY Slip Op 07097 (2d Dept. 2012).

Here is the decision. 

Tuesday's issue: Liquidated damages provisions.

Collecting attorneys' fees.

Practice point: New York follows the so-called American Rule, which is that an attorney's fee is merely an incident of litigation and is not recoverable absent a specific contractual provision or statutory authority.

Student note: Accordingly, a contractual provision permitting the prevailing party to recover fees that are incidents of litigation will be construed strictly. A promise assuming the obligation to pay fees will not be given effect unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances.

Case: 214 Wall St. Assoc., LLC v. Medical Arts-Huntington Realty, NY Slip Op 07103 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Defense based on documentary evidence.

Vacating a default, and law office failure.

Practice point: To vacate his default in opposing the plaintiffs' motion for summary judgment on the complaint, a defendant is required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1].

Student note: While law office failure can be accepted as a reasonable excuse in the exercise of a court's sound discretion, the movant must submit supporting facts to explain and justify the default, and mere neglect is not accepted as a reasonable excuse.

Case:  Taylor Appraisals v. Prokop, NY Slip Op. 07099 (2d Dept 2012).

Here is the decision. 

Tomorrow’s issue: Collecting attorneys’ fees.

Court holiday.

The courts are closed today because of the elections.

Wednesday's issue: Vacating a default, and law office failure.

Malpractice as opposed to negligence.

Practice point: The distinction between malpractice and ordinary negligence turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons, or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts.

Student note: When the incompetence alleged is of a specialized medical nature, deriving from the physician-patient relationship, and substantially related to medical diagnosis and treatment, the action it gives rise to is by definition one for medical malpractice rather than for simple negligence.

Case: Giordano v. Scherz, NY Slip Op 07087 (2d Dept. 2012).

Here is the decision. 

Wednesday’s issue: Vacating a default and law office failure.

Motion to dismiss for failure to state a cause of action.

Practice point: On the motion, pursuant to CPLR 3211(a)(7), the court must construe the pleading liberally, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note: The motion should be granted only when (1) it has been shown that a material fact alleged in the complaint is not a fact at all, and (2) there is no significant dispute regarding it.

Case: Cusso v. Chabau Café Corp., NY Slip Op 07084 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Malpractice as opposed to negligence.

Improper service of an order to show cause.

Practice point: The absence of proper service of an order to show cause is a sufficient and complete excuse for a default on the motion, and deprives the court of jurisdiction to entertain the motion.

Student note: Since the court was deprived of jurisdiction to entertain the plaintiff's motion, the order granting the motion, and the judgment entered upon that order, were nullities and must be vacated.

Case: Crown Waterproofing, Inc. v. Tadco Constr. Corp., NY Slip Op 07083 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Motion to dismiss for failure to state a cause of action.