Plaintiff sued defendant-hospital, claiming that her surgery should have been postponed since she had lost one-quarter of her body weight prior to her admission. The First Department dismissed the complaint, in Garson v. Beth Israel Medical Center, which was decided on June 7, 2007.

The court noted that, as a matter of law, a hospital is not liable for the acts of a private attending physician who is retained by a patient, and is not liable when its employees follow that physician's orders, unless the orders are clearly contraindicated by normal practice.

Here, the court found plaintiff's expert's affidavit lacking, in that it did not evaluate plaintiff's weight loss against her referring doctors' opinion that her overall deteriorating condition, including her weight loss, compelled the surgery. In addition, the court rejected as speculative the expert's conclusion that, with time, plaintiff would have regained the weight and would have better tolerated the surgery.

A walk in the park. Not.

While walking over a flower bed in defendant's park, plaintiff tripped and fell on an elevation differential adjacent to a stone wall which separated the flower bed and the surrounding grassy area. Plaintiff sued, but the Second Department granted defendant's summary judgment motion, in Errett v. Great Neck Park Dist., which was decided on May 29, 2007. The court noted that a property owner is under no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous.

Here, the court found that "the terraced nature of the park, including its flower beds and stone walls, did not create an inherently dangerous condition. Any elevation difference existing between the two sides of the stone wall was readily observable to those employing the reasonable use of their senses, and did not present an undue risk of harm."

The court also rejected plaintiff's affidavit in which she said that the accident was caused by inadequate illumination, since she previously had admitted that she had no difficulty in seeing the flower bed or the garden prior to the accident.

These are taxing times.

A solo practitioner deducted the following from his New York City unincorporated business gross income: (1) one-half of his federal self-employment tax; (2) the cost of his self-employed health insurance premiums; and (3) his contributions to a defined benefit pension plan. The First Department rejected the deductions, in Matter of Horowitz v. New York City Tax Appeals Trib., which was decided on June 5, 2007.

The court said that a tax deduction is not a matter of right but a function of what it called "legislative grace," and so the burden is on the taxpayer to establish entitlement to the proposed deduction. Here, the court said that the attorney did not meet his burden. "The subject payments, although deductible for federal income tax purposes, can be reasonably construed as remuneration for services for petitioner's benefit, and, as such, are not deductible under Administrative Code of City of NY § 11-507(3)."

There was a lengthy and vigorous dissent which argued that "[a]s a matter of law, the deductions are not payments that are income to petitioner and are not in the nature of compensation for services he performed." The dissent concluded that, under the majority's rationale, "every payment by a sole proprietorship to a third party would be disallowed under § 11-507(3)," and that is unreasonable.

No strikes.

The striking of an answer, pursuant to CPLR 3126, is a drastic remedy which requires a clear showing that the failure to comply with a discovery demand was willful and contumacious, according to the Second Department, in Denoyelles v. Gallagher, which was decided on May 29, 2007. The court said that, similarly, under the common-law doctrine of spoliation, a pleading may be struck only when, because of the negligent or intentional destruction of key evidence, the non-responsible party is unable to prove its claim or defense. Here, the court found no evidence that the so-called modification of the defendant's computer records was done in bad faith, or that, because of the modification, the plaintiff was left with no appropriate means of proving its claim.

Plaintiff and defendant executed an employment agreement which said, among other things, that plaintiff could be terminated only upon his "absolute failure to perform the contract's specification." Four months into the work, plaintiff was terminated. The First Department said that the firing was improper, in Mitchell v. Fidelity Borrowing, which was decided on May 31, 2007. The court noted that, while plaintiff was employed, defendant spent more than $116,000 for marketing and advertising, as plaintiff had directed. Defendant also paid plaintiff $33,000 in salary and bonuses. The court concluded, "There is no reasonable view of the evidence that would establish that plaintiff absolutely failed to perform under the employment contract." The court ordered defendant to pay plaintiff's salary for the entire two years of the consulting agreement.

Show me the paper, or go home.

A home improvement contractor who does not have and plead a valid license as required by relevant local regulations is out of luck when it comes to recovering damages for an alleged breach of a construction contract, or so said the Second Department, in Al-Sullami v. Broskie, which was decided on May 29, 2007. In addition, said the court, the contractor may not recover on the basis of quantum meruit either.

In a personal injury matter, defendant submitted a nonparty witness' affidavit which raised a triable issue of fact regarding plaintiff's comparative negligence. Plaintiff timely objected to the affidavit saying that it did not comply with the statute and challenging the notary's authority. The First Department said that such defects can be corrected nunc pro tunc, in Moccia v. Carrier Car Rental, Inc., which was decided on May 29, 2007. The court noted that defedant's attorney had submitted the original affidavit, bearing a notary seal, and along with proper certification.

Venue, again.

If you're looking to change venue, don't bother pleading convenience of the parties, since it is irrelevant, according the Second Department, in Frankel v. Stavsky, which was decided on May 22, 2007. Instead, the movant must plead (1) the convenience of the nonparty witness who is willing to testify, and (2) the nature and materiality of that witness's anticipated testimony. Failing that, said the court, we're staying put.

While playing basketball at a schoolyard, the ninth-grade plaintiff was hurt when he says he fell on a hole in the court's surface. Plaintiff testified that he had played basketball there before and that he had been playing for about forty minutes when the accident occurred. It is black-letter law that a player consents to those risks which are inherent to the sport and which flow from playing it. That consent runs to the construction of the playing surface and any open and obvious condition on it, according to the Second Department, which dismissed the suit, in Casey v. Garden City Park-New Hyde Park School Dist., which was decided on May 22, 2007.

In a suit seeking damages arising out of an unproductive raid of her premises, plaintiff demanded disclosure which included, among other things, the deposition of virtually everyone involved in obtaining the no-knock warrant or who participated in any way in its execution. She will not get it, according to the First Department, in Espady v. City of New York, which was decided on May 24, 2007. The court noted that, while New York strongly favors disclosure, it is not without limits. Here, plaintiff will get copies of affidavits used in securing the warrant, an inventory of the items to be searched and seized, and a transcript of the court proceedings which led to the granting of the warrant. However, she will not get to depose the confidential informant who testified under oath in those proceedings, or to know his identity. She will not get to depose any prosecutors involved in the underlying investigation, and she will not get personnel or disciplinary records, reprimands, complaints and investigations of the police officers and prosecutors who may have been involved.

Both sides agree on the following facts: at seven p.m. one Friday, plaintiff, needing to change his vehicle's tire, put down two reflectors to close an entire lane of traffic on Seventh Avenue between 39th and 40th Streets in Manhattan. While he was working on it, a taxi pulled up between the reflectors to drop off a passenger and pick up new passengers. As the taxi pulled away, it ran over one of the reflectors. The taxi driver stopped, and plaintiff approached the vehicle. There are two very different versions of what happened next. Plaintiff says he put his arms on the frame of the taxi's open window, and politely asked the driver to pay for the broken reflector. The taxi driver, though, says that plaintiff, armed with a pipe, approached the taxi, yelling, "You are going to pay for this." With that, and at the insistence of his passengers, who urged, repeatedly, "Move, move, move. Go, go. He's crazy. He's going to kill us," the taxi driver says he drove away from the scene, unaware of his having run over plaintiff's foot. That was enough to merit a comparative negligence charge, according to the First Department, in Hazel v. Nika, which was decided on May 22, 2007. The court noted that, even though the taxi driver testified that plaintiff never got closer to the taxi than six or seven meters, plaintiff's own testimony put him at the taxi's window, "close enough for the taxicab to make physical contact with his foot and right knee, thereby allegedly causing his injuries." The court further noted that, "Juries are empowered to dissect the testimony of witnesses to accept what is credible and reject what is not."