Negligence.

Practice point: There is no physician-patient relationship where the examination is conducted solely for the purpose of rendering an evaluation as a litigation support service for an insurer, and a resulting cause of action sounds in negligence not medical malpractice, with a three-year statute of limitations.

Practitioners should note that any prior Second Department decisions which hold or indicate otherwise are no longer to be followed.

Case: Bazakos v. Lewis, NY Slip Op 07081 (2d Dept. 2008)

The opinion is here.

Disinterment.

Practice point: A body may be disinterred on consent of the cemetery corporation, the plot’s owners, and the surviving spouse, children, and parents of the deceased, pursuant to N-PCL § 1510[e]. However, in the absence of consent, a court may grant permission to disinter upon a showing of a good and substantial reason. A petitioner's demonstration that the deceased spouse’s wish was that they be buried together, and that petitioner cannot get appropriate assurances from the plot’s other owners, is enough.

Case: Pring v. Cemetery, NY Slip Op 06840 (2d Dept. 2008)

The opinion is here.

Labor Law.

Practice point: While the reach of § 240(1) is not limited to work performed on actual construction sites, the injured plaintiff must have been working on the erecting, demolishing, repairing, altering, painting, cleaning or pointing of a building or structure. To succeed on a motion to dismiss because the statute does not apply, a defendant must offer evidentiary proof, in admissible form, as to the nature of the work plaintiff was performing at the time of the accident, and the manner in which the accident occurred.

Case: Valdivia v. Consolidated Resistance Co. of Am., Inc., NY Slip Op 06826 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: A motion for leave to renew a motion to reinstate a note of issue will be granted when it is supported by a properly framed certificate of readiness and by an affidavit, based on first-hand knowledge, showing that there is merit to the action; specifying why the note of issue was vacated; offering meritorious reasons for the reinstatement; and establishing that the case is ready for trial.

Case: Suburban Restoration Co., Inc. v. Viglotti, NY Slip Op 06823 (2d Dept. 2008)

The opinion is here.

Service of process.

Practice point: The mere denial of receipt is insufficient to rebut the presumption of proper service created by a properly executed affidavit of service.

Case: Malik v. Noe, NY Slip Op 06809 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: No appeal lies from an order denying a motion for leave to reargue.

Case: Levy v. Kung Sit Huie, NY Slip Op 06807 (2d Dept. 2008)

The opinion is here.

Jury verdicts.

Practice point: A jury’s finding that a party was negligent but that the negligence was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the negligence and causality are so interwoven as to make it logically impossible to find one without the other. If the verdict can be reconciled with any reasonable view of the evidence, it will be presumed that the jury adopted that view.

Case: Jaffier v. Wilson, NY Slip Op 06802 (2d Dept. 2008)

The opinion is here.

Discovery.

Practice point: A plaintiff waives an objection to the adequacy and timeliness of disclosure by filing a note of issue and certificate of readiness prior to moving for the imposition of a discovery sanction, pursuant to CPLR 3126.

Case: Iscowitz v. County of Suffolk, NY Slip Op 06801 (2d Dept. 2008)

The opinion is here.

Assumption of the risk.

Practice point: A voluntary participant in a sport assumes the known risks normally associated with it. However, participants do not assume the risks of reckless or intentional conduct or concealed or unreasonably increased risks. While being struck in the head by a baseball is a known risk inherent in the sport, a plaintiff's deposition testimony, along with affidavits of plaintiff’s teammates, may raise a triable issue of fact as to whether an alleged cracked batter's helmet unreasonably increased the risk of injury.

Case: Fithian v. Sag Harbor Union Free School Dist., NY Slip Op 06798 (2d Dept. 2008)

The opinion is here.

Motion practice.

Practice point: On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction; 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. However, bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference.

Case: Breytman v. Olinville Realty, LLC, NY Slip Op 06787 (2d Dept. 2008)

The opinion is here.

Contracts.

Practice point: A contracting party’s exercise of a discretionary right may breach the implied obligation of good faith and fair dealing if it frustrates the basic purpose of the agreement and deprives the other party of its benefits under the contract.

Case: C & E 608 Fifth Ave. Holding, Inc. v. Swiss Ctr., Inc., NY Slip Op 06743 (1st Dept. 2008)

The opinion is here.