Medical malpractice.

Practice point: If the matter is not within the ordinary juror's experience, expert testimony is needed to prove a deviation from the accepted standard of medical care and proximate cause.

Student note: When that expert testimony is precluded, plaintiff cannot make out a prima facie case, and the complaint will be dismissed.

Case: Sushchenko v. Dyker Emergency Physicians Serv., P.C., NY Slip Op 06101 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Personal injury.

90-day demands.

Practice point: On receipt of a 90-day demand, pursuant to CPLR 3216, plaintiff must serve and file a timely note of issue, or move, before the default date, to vacate the demand or to extend the time, pursuant to CPLR 2004.

Student note: Otherwise, plaintiff must demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action to avoid dismissal, pursuant to CPLR 3216[e].

Case Gagnon v. Campbell, NY Slip Op 06092 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Medical malpractice.

Architect malpractice.

Practice point: There is a three-year statute of limitations, pursuant to CPLR 214(6).

Student note: The cause of action accrues on completion of the work and the subsequent termination of the professional relationship.

Case: Vlahakis v. Belcom Dev., LLC, NY Slip Op 05957 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: 90-day demands.

Prima facie tort.

Practice point: The elements are: (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful.

Student note: The claim does not lie where defendant's action has any motive other than a desire to injure the plaintiff.

Case: Smith v. Meridian Tech, Inc., NY Slip Op 05954 (2d Dept. 2011).

Here is the decision.

Listen here.

Monday's issue: Architect malpractice.

Adverse possession

Practice point: Claimant must prove that possession of the property was: (1) hostile and under a claim of right; (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period.

Student note: Pursuant to RPAPL 501(3), "[a] claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be."

Case: Hogan v. Kelly, NY Slip Op 06018 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Prima facie tort.

Motions to dismiss.

Practice point: Pursuant to CPLR 3211(a)(1), the motion may be granted only where the movant offers documentary evidence which utterly refutes plaintiff's allegations, and conclusively establishes a defense as a matter of law.

Student note: In considering the motion, pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged as true, give plaintiff the benefit of every possible inference, and determine only whether the alleged facts fit within any cognizable legal theory.

Case: Cog-Net Bldg. Corp. v. Travelers Indem. Co., NY Slip Op 06014 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Adverse possession.

Labor Law.

Practice point: There is no § 240(1) liability when safety devices were readily available at the work site and plaintiff knew he was expected to use them but, without good reason, did not.

Student note: There may be § 240(2) liability when a worker is injured due to an elevation-related hazard.

Case: Pietrowski v. Are-East Riv. Science Park, LLC, NY Slip Op 05977 (1st Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Motions to dismiss.

Rescission.

Practice point: If defendant was fraudulently induced, it is entitled to rescind the contract.

Student note: The effect of rescission is to declare the contract void from its inception, and to put or restore the parties to status quo 

Case: Cusack v. American Defense Sys., Inc., NY Slip Op 06015 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Labor Law.

Corporations.

Practice point: Generally, a corporation that acquires the assets of another is not liable for the torts of its predecessor. 

Student note: However, the successor corporation may be liable if it is nothing more than a continuation of its predecessor.

Case: Kaur v. American Tr. Ins. Co., NY Slip Op 05938 (1st Dept. 2011).

Here is the decision.

Listen here.

Monday's issue: Rescission.

Civil contempt.

Practice point: A  party seeking an adjudication of civil contempt must establish a willful and deliberate violation of a court order, expressing a clear and unequivocal mandate, pursuant to Judiciary Law § 753.

Student note: The burden of proof is on the party seeking the adjudication, and the standard is clear and convincing.

Case: Collins v. Telcoa Intl. Corp., NY Slip Op 05948 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Corporations.

Yellowstone injunctions.

Practice point: The injunction maintains the status quo so that a commercial tenant, when threatened with termination, may stay tolling the cure period, and, upon an adverse determination on the merits, may cure the default.

Student note: Tenant must demonstrate that (1) it holds a commercial lease; (2) it received a notice of default, a notice to cure, or a threat of termination; (3) it requested injunctive relief prior to both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord's notice to cure; and (4) it is prepared, and maintains the ability, to cure the alleged default by any means short of vacating the premises 

Case: Barsyl Supermarkets, Inc. v Avenue P Assoc., LLC, NY Slip Op 05946 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Civil contempt.