Medical Malpractice

Practice point: On a motion for summary judgment in a medical malpractice action, a defendant physician has the burden of establishing the absence of any departure from good and accepted medical practice, or, if there was a departure, that it did not injure plaintiff.

Case: Germaine v. Yu, NY Slip Op 02551 (2d Dept. 2008)

Facts: Shortly before noon, plaintiff arrived at the emergency room, complaining of abdominal pain, nausea, and constipation. An attending physician examined plaintiff at 12:45, and a resident examined her at approximately 1:00 o'clock. Several tests were ordered, and, before the tests were completed, the resident's shift ended and he left the hospital. Later, after additional testing, plaintiff was discharged, with a diagnosis of diverticulitis. Three days later, she was admitted to another hospital, where she was diagnosed with peritonitis and a perforated sigmoid colon, and underwent surgery.

The attending physician demonstrated that, when he left the hospital, he transferred responsibility for plaintiff's care to another attending physician, and was not responsible for any departures from accepted medical practice that occurred thereafter in either the supervision of the resident or the decision to discharge plaintiff.

CPLR 3404

Practice point: The issuance of a stay of the action is not the equivalent of marking the case off the calendar, within the meaning of the statute.

Case: Barbu v. Savescu, NY Slip Op 02546 (2d Dept. 2008)

Medical Disqualification.

Practice point: In finding a candidate medically disqualified, a city agency may rely on its own medical director's conclusions, even when the candidate's private physician offers a conflicting opinion.

Case: Rivers v. Department of Sanitation, NY Slip Op 02645 (1st Dept. 2008)

Trivial defects.

Practice point: A property owner may not be held liable for trivial defects, not constituting a trap or a nuisance, over which a person might merely stumble or trip.

Case: Ayala v. Gutin, NY Slip Op 02545 (2d Dept. 2008)

Administrative Code of City of NY § 7-201[c][2]

Practice point: The City cannot be held liable for a defect in a sidewalk unless it received written notice of the defect, or made a written acknowledgment of the condition, and failed to remedy the condition within 15 days after the notification or acknowledgment.

Case: Alvino v. City of New York, NY Slip Op 02544 (2d Dept. 2008)

Domestic Relations Law § 236[B][3]

Practice point: Absent a proper written acknowledgment, a postnuptial agreement is unenforceable, even if the agreement was ratified either through word or conduct.

Case: Angel v. O'Neill, NY Slip Op 02640 (1st Dept. 2008)

Facts: The notary testified that the signature on the agreement was not hers, and the court found an obvious difference between the purported signature and the notary's admittedly genuine signature.

A snow removal contractor's tort liability.

Practice point: A snow removal contractor does not assume tort liability in favor of an injured third party unless: (1) the snow removal contractor launched a force or instrument of harm in failing to exercise reasonable care in the performance of its duties; (2) the injured person detrimentally relied on the continued performance of the snow removal contractor's duties; or (3) the snow removal contract entirely displaced the landowner's duty to safely maintain the premises.

Case: Bickelman v. Herrill Bowling, NY Slip Op 02091 (2d Dept. 2008)

Administrative Code of the City of New York § 8-102[16][c]) and
9 NYCRR 466.11[h][1]

Practice point: A person who is currently using illegal drugs is not disabled, within the meaning of the Administrative Code, and is not entitled to protection under the Human Rights Law.

Case: Iannone v. ING Financial Services, NY Slip Op 02468 (1st Dept. 2008)

Facts: A stock trader was tape-recorded apparently discussing the purchase and use of illegal drugs on his employer's premises. When confronted, the trader said that his conversation was taken "out of context," and his employer suspended him and gave him an opportunity to place the conversation "in context." The next day, the trader sent an e-mail stating that he realized he was addicted to illegal drugs and needed to seek immediate medical and psychiatric treatment to help him stop. He requested an accommodation to pursue a drug rehabilitation program, which might require him to seek personal time off. Instead, the employer immediately terminated his employment by telephone. An accommodation was not required since the trader was abusing drugs at the time of his termination.

CPLR 3211(a)(7)

Practice point: New York does not recognize an independent cause of action for punitive damages.

Case: Aronis v. TLC Vision Ctrs., Inc., NY Slip Op 02090 (2d Dept. 2008)

Facts: The cause of action sounding in punitive damages was dismissed because New York does not recognize it. Moreover, the cause of action sounding in negligence did not implicate the level of moral culpability necessary to support a claim for the imposition of punitive damages. Punitive damages are available for the purpose of vindicating a public right only where the alleged tortfeasor's actions constitute gross recklessness or intentional, wanton or malicious conduct aimed at the pubic generally or are activated by evil or reprehensible motives.

Mental Hygiene Law § 81.08[a][4],[5]

Practice point: In an Article 81 matter, petitioner must pay the entire court evaluator's fee in the event that a petition is rejected as patently insufficient.

Case: Matter of Schneider v. Engelmayer, NY Slip Op 02202 (1st Dept. 2008)

Facts: Petitioner was directed to pay the court evaluator's fee, in its entirety, where the petition, which was dismissed after a hearing for lack of medical evidence substantiating petitioner's claim of incapacity, lacked the required specific factual allegations of personal actions or financial transactions demonstrating incapacity.

CPLR 4518

Practice point: The mere fact that a report is a business record, within the meaning of the statute, does not overcome any other exclusionary rule which might properly be invoked.

Case: Afridi v. Glen Oaks Village Owners, Inc., NY Slip Op 02085 (2d Dept. 2008)

Facts: Infant plaintiff had been seriously burned by hot water from a faucet in the bathroom of her family's apartment, and plaintiffs brought an action against the cooperative corporation which owned the apartment, alleging negligence in supplying excessively hot water. The trial court properly excluded from evidence a section of a police report indicating that, 12 days after the accident, the hot water from the faucet registered a temperature of 160 degrees Fahrenheit. Plaintiffs failed to establish a proper foundation for the report's admission, in that, among other things, the report did not specify any details about how the temperature measurement was made.