Plaintiff was three months pregnant when she allegedly slipped and fell on coffee beans on the floor of defendant's supermarket. She had a miscarriage the next day and sued for the emotional distress she suffered as a result. The Second Department denied defendant's motion to dismiss, in Falah v. Stop & Shop Cos., Inc., which was decided on June 19, 2007. The court gave effect to an Ohio physician's notarized affidavit which said that, based on his review of the hospital records, the miscarriage was causally related to the fall. The court said that the fact that there was no certification as to the notary's authenticity was not a fatal defect since, as a general rule, a party cannot establish its entitlement to summary judgment merely by pointing to gaps in the opponent's proof.

The Second Department offers an instructive opinion in Berger v. Temple Beth-el of Great Neck, which was decided on June 19, 2007. Plaintiff alleged that defendants had defamed him by issuing statements disclosing and explaining the termination of his membership from the synagogue. The court granted defendants' summary judgment motion on the basis of a qualified privilege, since the challenged statements had been made in the discharge of a private duty and in furtherance of a religious organization's common interest. The court noted that plaintiff could not defeat the qualified privilege by arguing that the challenged statements were excessively published, since the recipients all shared a common interest.

They should have kept a light burning.

Petitioner-landlord will be getting his rent-stablilized apartment back since he proved, by a preponderance of the evidence, that it was not the tenant's primary residence, in Carmine Limited v. Gordon, which was decided by the First Department on June 14, 2007. The apartment in question -- a 450-square foot, one bedroom walk-up in Greenwich Village -- was first rented in 1978. In 1991, though, tenants also leased a rent-stabilized two-bedroom apartment in Stuyvesant Town, and have been paying rent on both apartments ever since. The court gave short shrift to tenants' argument that,because their marriage was rocky, the husband had moved into the Stuyvesant apartment, while the wife continued to live in the Village apartment. The court noted that, through all these years, there has never been even a separation agreement, much less divorce proceedings, and that the tenants remain very much married. They share a single joint bank account into which the wife's paychecks are deposited directly, and the husband pays all the bills, to include rent on both apartments. The court said that what it found most persuasive was the evidence that there had been negligible use -- and for extended periods no use -- of electricity in the Village apartment for more than a year prior to the commencement of this holdover proceeding.

A motion to dismiss pursuant to CPLR 3211(a)(7) will fail if the complaint states in some recognizable form any cause of action known to New York law, according to the Second Department, in New York Merchants Protective Co., Inc. v. Rodriguez, which was decided on June 12, 2007. Here, the court found that the complaint had sufficiently made out a cause of action sounding in tortious interference with contract, the elements of which are (1) the existence of a valid contract with a third party, (2) defendant's knowledge of that contract, (3) defendant's intentional and improper procuring of a breach, and (4) damages.

The doctor's employment contract included a provision which said that, if he were fired without cause, he would receive severance pay, provided that he did not thereafter provide medical services on his own behalf or for another entity.

The First Department refused to give that provision effect, in Scott v. Beth Israel Med. Ctr., which was decided on June 19, 2007. "[T]he employee choice doctrine contemplates that where the employer terminates the employment relationship without cause, his action necessarily destroys the mutuality of obligation on which the covenant rests as well as the employer's ability to impose a forfeiture."

The tort of libel arises from the publication of a statement which is both false and defamatory, and there is no cause of action if the words are not reasonably susceptible of a defamatory meaning, according to the Second Department, in Klepetko v. Reisman, which was decided on June 12, 2007.

Plaintiff brought the action to recover damages for allegedly defamatory statements made in a daily newspaper column which stated, among other things, that plaintiff was "cowardly," an "idiotic menace," and that he lived with another middle-aged man, which the plaintiff alleges is an insinuation that he is a homosexual.

The court said that the opinions expressed in the column are not actionable because they are "pure opinions" supported by a recitation of facts on which they were based. At worst, said the court, they are no more than name-calling or a general insult, a type of epithet not to be taken literally and not injurious to plaintiff's reputation.

The court also said that a false imputation of homosexuality may be reasonably susceptible of a defamatory connotation but, here, "the statement that the plaintiff lived together with another middle-aged man does not readily connote a sexual relationship, particularly when viewed in the context of a column concerning irresponsible dog owners."

Dog bites.

It is well settled that, to recover in strict liability for a dog bite, plaintiff must show that the dog had vicious propensities and that the owner knew or should have known of them. The Second Department specified the requisite showing, in Galgano v. Town of N. Hempstead, which was decided on June 12, 2007. "Evidence tending to demonstrate a dog's vicious propensities includes that of a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm." In finding that plaintiff had not made the proper showing, the court noted that "[t]he fact that the subject dog was brought to the animal shelter because another dog in the owner's household did not get along with it is not indicative that it had vicious propensities."

Read it, Sam.

Plaintiff could have (and should have) stopped reading on page one, or so said the First Department, in Webster v. New York Life Ins. & Annuity Corp., which was decided on June 12, 2007. "The first page of the annuity policy states that the accumulation value is not guaranteed with respect to the Separate Account. The Policy Data Page recites only that the guaranteed interest rate will be 3%. It does not state that an interest rate is guaranteed for each of the three investment options, the Separate Account, the Cash Management Fixed Account and the Dollar Cost Averaging Program. Interest is not provided in the Separate Account. The Separate Account consists of various stock market mutual funds, an investment vehicle not typically associated with the payment of interest. Rather, the policy only provides a rate of return, based on interest, in the sections dealing with the latter two investment options. With respect to each of these two options, the policy expressly states that the interest rate will never be less than the minimum guaranteed rate set forth on the Policy Data page. Consistent with the first page of the policy, no such language appears in the section dealing with the Separate Account. The average purchaser thus could not expect the policy, read as a whole, to guarantee a rate of return for investment in the Separate Account."

Plaintiffs secured a mortgage loan from defendant and paid a number of settlement charges, to include a $100 document preparation fee. They then filed a putative class action suit claiming that the document preparation was tantamount to the unauthorized practice of law, and, therefore, in violation of Judiciary Law § 478, § 484, and § 495(3). The First Department disagreed, in Fuchs v. Wachovia Mtge. Corp., which was decided on June 5, 2007. The court noted that the document in question required only that defendant fill in the name and address of the borrower, the date of the loan, the principal amount loaned, the interest rate, and the monthly payment. Plaintiffs had their own attorney at the closing and never claimed that they had received any legal advice from defendant.

Home is where your taxes are paid.

Tenant prevailed in a holdover proceeding in which the issue was whether her primary residence was her city apartment or her upstate house. In 310 E. 23rd LLC v. Colvin, which was decided on June 7, 2007, the First Department found that tenant had a "substantial physical nexus" to the apartment, and determined that her house upstate is a second residence which she uses on weekends, holidays and vacations. The court noted, among other things, that tenant's state tax returns specify that tenant is a full-year resident of New York City, and show that she paid city tax on all her income, even though those same returns list the upstate residence as her home address.

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.