Hearsay, no exception.

After having been injured in a boating accident, plaintiff sued for damages. At trial, her treating physician testified that the doctors who had performed an MRI were reliable; that he had used their MRI reports in formulating a treatment plan; and that such reports are generally accepted and used by physicians. Over the defense's objection, the MRI reports were admitted into evidence, not for their truth, but because the treating physician had relied on them. Were the reports properly admitted? No, said the Second Department, in Clevenger v. Mitnick, decided on March 13, 2007. The court cited Wagman V. Bradshaw, 292 A.D.2d 84, as standing for the proposition that the MRI reports are inadmissible hearsay, even though defendant could have called his own expert to refute them.

Attention, plaintiff, the store is closing.

After having been detained on suspicion of theft of merchandise, plaintiff sued for, among other things, false imprisonment and malicious prosecution. The First Department granted defendant's summary judgment motion, in Conteh v. Sears, Roebuck, decided on March 15, 2007. For the one thing, plaintiff failed to raise a triable issue as to the unreasonability of the manner and duration of his detention, and, for the other, the fact that defendant called the police, brought the criminal complaint and cooperated with the District Attorney's office did not, as a matter of law, constitute malicious prosecution.

(I've Got) Diamonds on the Soles of My International Shoes

Solo practitioners should take careful note of the First Department's opinion in Fischbarg v. Doucet, decided on March 13, 2007. Plaintiff is a New York solo and defendant is a California resident and president of a California corporation. In 2001 defendant telephoned plaintiff who agreed to "research and pursue potential claims" sounding in copyright infringement. Defendant was later sued in Orgeon where plaintiff was admitted pro hac vice. Plaintiff never appeared in Oregon and worked the entire matter out of his New York office. Depositions and court conferences were handled by telephone, as were summary judgment motions. After a fee dispute, defendant fired plaintiff in 2002 and plaintiff is suing for legal fees based on quantum meruit. The fight, of course, is over jurisdiction and the reach of New York's long-arm statute on these facts. The opinion is instructive as regards "articulable nexus" and "purposeful availment," as well as on the impact of evolving technologies on traditional jurisdictional principles. The majority stands, though, on familiar ground: the defendant asked plaintiff to do "substantial work" in New York, and, therefore, is subject to New York jurisdiction. I think the majority got it right, but there is a lengthy dissent. See what you think.

Liability for a fall on the Yellow Brick Road?

Plaintiff allegedly tripped and fell on a public sidewalk outside a store leased by defendant, The Wiz, which was denied summary judgment in Bah v. City of New York, et al, decided on March 9, 2007. Noting that, as a lessee, "The Wiz would be liable to a pedestrian injured by a defect in a public sidewalk abutting its property if it created the defect, caused it to occur through some special use, or breached a specific ordinance or statute obligating it to maintain the sidewalk," the Second Department found defendant's showing insufficient to merit judgment as a matter of law. Practitioners should note that this determination is made regardless of the sufficiency of opposing papers.

Plaintiff's sticky wicket.

After choosing a number of fruits and vegetables displayed on the sidewalk just outside defendant's store, plaintiff went inside to pay for the goods. Plaintiff alleged that, as she was leaving, she slipped and fell because of a piece of gum on the floor. The Second Department granted defendant's summary judgment motion, in Calo v. Bel-Mar Spa, Inc., decided on March 6, 2007. The court applied elemental slip-and-fall principles: there was no showing that defendant either created the condition or knew about it. Next.

In a dental malpractice action, what is the proper standard for the court-ordered release of records containing HIV-related information?

The proper standard is "compelling need," according to the First Department in Deriesthal v. Judy, decided on March 8, 2007. The controlling statute is Public Health Law § 2785, which, in pertinent part, says: "A court may grant an order for disclosure of confidential HIV related information upon an application showing: (a) a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding . . . ." The Court noted that this is clearly distinct from the "material and necessary" standard of CPLR 3101(a).

Court gives Transit the big chill.

The Second Department refused to take down a mid-six-figure jury verdict in Anthony v. New York City Transit Authority, decided on March 6, 2007. A police officer, plaintiff was injured when, while responding to a 911 call, he fell on ice which had formed on the bottom step of a stairway. He was down for about thirty minutes, during which time he saw water dripping non-stop from an overhead canopy, and observed that the bottom step was caked with about an inch of ice. The court found that"the jury rationally could have concluded that the subway station cleaner, who was on site on a regular scheduled tour approximately four hours before the accident, would have noticed the ice on the step on which the plaintiff fell in the course of performing his duties. Furthermore, a reasonable inference could be drawn, based on the plaintiff's testimony, that the icy condition existed for a sufficient time to allow the cleaner to discover and remedy it."

A Products Liability Primer

If you have not done much products liability work, the First Department offers an instructive opinion in Donovan v. All-Weld Products Corp., decided on March 6, 2007. Plaintiff's decedent, wearing an air respirator helmet, had been asphyxiated while sandblasting. The court began by noting that, for an action to sound in strict products liability, "a plaintiff may assert that the product is defective because of a mistake in the manufacturing process or because of an improper design or because the manufacturer failed to provide adequate warnings regarding the use of the product." Here, plaintiff had alleged defective design, which, as the court continued, means that when the product left the seller's hands it was "in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use." Defendant offered uncontroverted documentary evidence in the form of various safety agency verifications that the respirator in question (1) was reasonably safe for its intended use and (2) had been functioning properly on the day of the accident. The burden shifted to the plaintiff who offered expert testimony as to the availability of additional features which plaintiff claimed would have made the respirator safer. The court found, though, that plaintiff did not make the necessary connection between those additional features and the accident, and granted summary judgment to defendant.

See you in court.

Seeking damages for injuries suffered when she was struck by a car, plaintiff offered deposition testimony of herself and the driver, but the First Department did not find a prima facie case as regards either negligence or proximate cause. In Binetti v. Infante, decided on March 1, 2007, the court noted that it was unclear as to whether plaintiff had been crossing the street at the intersection. In addition, defendant's testimony that she had "looked in the two mirrors and my rearview, and I turned around and there was no one next to the car," raised a credibility issue which could not be decided on summary judgment.

Plaintiff gets decked.

After plaintiff slipped and fell on a hanger which was on the floor of a clothing store, defendant's summary judgment drill was boilerplate: (1) it didn't know about the hanger, and (2) it didn't put it there. Period. Plaintiff argued that there was a fact question on constructive notice since several store employees were working nearby when plaintiff was injured. Anything there? No, according to the Second Department in Borenkoff v. Old Navy, decided on February 27, 2007. "The plaintiffs submitted no evidence that the defendant's employees created the condition by leaving hangers on the floor, and no evidence that the subject hanger had been on the floor for a sufficient length of time to provide constructive notice."

If you can't argue the facts...

even pounding the table won't save you from summary judgment, or so said the First Department in Browder v. New York City Health and Hospitals Corp., decided on February 27, 2007. Defendant-movant had offered (1) hospital records, (2) deposition testimony, and (3) the affirmation of an experienced and expert pediatric urologist. The plaintiff? Well, on that side of the ledger there was a purported expert's affidavit which did not specify even the affiant's medical specialty, much less evidence of "the requisite background and knowledge to furnish a reliable opinion." But it gets worse. "The affidavit was also insufficient since it failed to address the detailed affirmation of defendant's expert, addressed the alleged departures from the standard of care and proximate cause only in conclusory terms, was contradicted by the record, was based on a hospital record notation whose source was unknown and thus inadmissible, and was otherwise lacking in evidentiary foundation."