Motions to dismiss.

Practice point: A party may move to dismiss a defense on the ground that a defense is not stated or has no merit, pursuant to CPLR 3211[b].

Student note: In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference. If there is any doubt as to the availability of a defense, it should not be dismissed.

Case: Chestnut Realty Corp. v. Kaminski, NY Slip Op 04121 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: The quality assurance privilege.

Appealing a determination of fact.

Practice point: The Supreme Court determined that the defendant's disclaimer of coverage was untimely, and the defendant appealed from so much of the order as made that determination. The appeal was dismissed because findings of fact and conclusions of law are not independently appealable.

Student note: To the extent that the defendant raises an argument on appeal regarding its motion for leave to amend its answer, that motion was not addressed by the Supreme Court, and, thus, remains pending and undecided.

Case: Baez v. First Liberty Ins. Corp., NY Slip Op 04118 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motions to dismiss.

'Falling object' liability.

Practice point: Liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured. Liability may be imposed where an object or material that fell, causing injury, was a load that required securing for the purposes of the undertaking at the time it fell.

Student note: The applicability of the statute in a falling object case does not depend upon whether the object has hit the worker. The relevant inquiry is whether the harm flows directly from the application of the force of gravity to the object.

Case: Andresky v. Wenger Constr. Co., Inc., NY Slip Op 04116 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Appealing a determination of fact.

Orders of dismissal.

Practice point: Plaintiff's motion to vacate the order of dismissal should have been granted since, whether the dismissal was pursuant to CPLR 3216(b)(3) or CPLR 3126, it did not comply with statutory requirements. The case was marked dismissed after plaintiff failed to comply with a status conference order directing him to serve and file a note of issue within seven days. That order did not comply with the requirements of CPLR 3216(b), in that plaintiff was not given 90 days to file a note of issue, and the order did not contain a statement that a default  in complying with the demand will serve as a basis for a motion for dismissal as for unreasonably neglecting to proceed. Since there was no motion pursuant to CPLR 3216(b)(3), or notice to plaintiff, the case could not be dismissed for failure to prosecute.

Student note: The status conference order is not appealable as of right because it is not an order which determined a motion made upon notice.

Case: Armstrong v. B.R. Fries & Assoc., Inc., NY Slip Op 04071 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: ‘Falling object’ liability.

The 90-day notice.

Practice point: Having received a 90-day notice, the plaintiff was required either to serve and file a timely note of issue or move, before the default date, for an extension of time pursuant to CPLR 2004. The plaintiff did neither. To avoid dismissal of the action, the plaintiff was required to show a justifiable excuse for the delay and a potentially meritorious cause of action, pursuant to CPLR 3216[e].

Student note: Plaintiff’s showing of a potentially meritorious cause of action requires an affidavit by one with personal knowledge of the facts.

Case: Colon v. Papatolis, NY Slip Op 03975 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Orders of dismissal.

Moving to dismiss a medical malpractice claim.

Practice point: On the motion to dismiss, a defendant must make a prima facie showing that there was no departure from good and accepted medical practice, or, if there was a departure, that the plaintiff was not injured thereby. Upon such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing so as to demonstrate the existence of a triable issue of fact.

Student note: General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat the motion.

Case: Bezerman v. Baline, NY Slip Op 03971 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: The 90-day notice.

Transfer of interest in a cause of action.

Practice point: Pursuant to CPLR 1018, upon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action.

Student note: In the absence of an order directing a substitution, the plaintiff was entitled to continue this action notwithstanding the fact that, after commencing the action, he executed an assignment transferring all right, title, and interest in his legal malpractice cause of action to another.

Case: Bey v. Flushing Hosp. Med. Ctr., NY Slip Op 03970 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Moving to dismiss a medical malpractice claim.

Regulating discovery.

Practice point: The order that plaintiff was not to have his own personal recording device during depositions was an appropriate exercise of the court's power to regulate discovery, pursuant to CPLR 3103, especially given plaintiff's habit of tape recording conversations without notice to his interlocutor.

Student note: Plaintiff was required to provide his mental health records, as he had affirmatively placed his mental and emotional state at issue, and because plaintiff had not yet produced any documents, but admitted to having responsive documents, the court properly ordered him to produce the documents.

Case: Retamozzo v. Quinones, NY Slip Op 03888 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Transfer of interest in a cause of action.

Honor Veterans.

A special thanks to Veterans, no matter where or when you served.

The courts are closed to mark Memorial Day.

Tomorrow’s issue: Regulating discovery.

Lack of informed consent.

Practice point: To establish the cause of action, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances; (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed; and (3) that the lack of informed consent is a proximate cause of the injury.

Student note: Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions.

Case: Magel v. John T. Mather Mem. Hosp., NY Slip Op 03813 (2d Dept. 2012).

Here is the decision. 

Tuesday’s issue: Regulating discovery.

Rear-end collisions.

Practice point: When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over the vehicle, and to exercise reasonable care to avoid colliding with the other vehicle.

Student note: Therefore, a rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision.

Case Denezzo v. Joseph, NY Slip Op 03799 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Lack of informed consent.