Discovery demand for medical records.

Practice point: A party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue.

Student note: However, a party does not waive the physician-patient privilege with respect to unrelated illnesses or injuries.

Case: Romance v. Zavala, NY Slip Op 06067 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Adverse possession.

Fraud, and the summary judgment burden.

Practice point: The essential elements of a cause of action sounding in fraud are a misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it; justifiable reliance of the other party on the misrepresentation or material omission; and injury.

Student note: A party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense.

Case: River Ridge Living Ctr., LLC v. ADL Data Sys., Inc., NY Slip Op 06066 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Discovery demand for medical records.

Preliminary injunction.

Practice point: To obtain a preliminary injunction, a movant must establish (1) a likelihood of success on the merits; (2) irreparable injury absent a preliminary injunction; and (3) a balancing of the equities in the movant's favor,

Student note: Irreparable injury, for purposes of equity, has been held to mean any injury for which money damages are insufficient.

Case: L & M Franklyn Ave, LLC v. S. Land Dev., LLC, NY Slip Op 06064 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Fraud, and the summary judgment burden.

Motion for leave to renew or reargue.

Practice point: A motion for renewal must be based upon new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221[e][2]. A motion for reargument must be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion, pursuant to CPLR 2221[d][2]). Further, even where a motion for reargument is technically untimely under CPLR 2221[d][3], a court has discretion to reconsider its prior ruling, pursuant to CPLR 2004.

Student note: A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court.

Case: HSBC Bank USA, N.A. v. Hall, NY Slip Op 06063 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Preliminary injunction.

Law of the case.

Practice point: The doctrine is a rule of policy and practice to ensure that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned.

Student note: The doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision, and to the same questions presented in the same case.

Case: Erickson v. Cross Ready Mix, Inc., NY Slip Op 06062 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion for leave to renew or reargue.

Day care and the duty of care.

Practice point: Both a day care program and a person to whom the custody and care of a child is entrusted by a parent have a duty to adequately supervise children in their charge, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.

Student note: A plaintiff is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred. Plaintiff's burden of proof on this issue is satisfied if the possibility of another explanation for the event is sufficiently remote or technical to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence.

Case: Cesar Ivan A. v. Lolita Child Day Care, NY Slip Op 06051 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Law of the case.

The work product privilege.

Practice point: Work product is privileged, and that privilege extends to experts retained as consultants to assist in analyzing or preparing the case. However, protection runs only to facts and observations disclosed by the attorney. Thus, it is the information and observations of the attorney that are conveyed to the expert which may be subject to trial exclusion. The privilege does not insulate other disclosed information from public exposure.

Student note: To the extent that any portion of the reports prepared by the forensic analyst is attorney work product, the privilege protects the reports notwithstanding that the analyst reviewed the reports prior to his deposition.

Case: Beach v. Touradji Capital Mgt., LP, NY Slip Op 06004 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Day care and the duty of care.

Labor Law.

Practice point: The engineer's contractual duty to visit the site "at periodic intervals" to determine if construction was in accordance with plans and specifications, is insufficient by itself to hold the engineer liable under Labor Law § 240(1) and § 241(6), and there is no evidence otherwise to indicate that the engineer had the authority to direct or control the work at issue.

Student note: Since the defective condition was latent and not visibly apparent, the fact that the owners were frequently present at the accident site, even for prolonged periods of time, is insufficient to establish constructive notice.

Case: Lopez v. Dagan, NY Slip Op 05999 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: The work product privilege.

Consumer protection from bad actors.

Practice point: General Business Law article 22-A, entitled "Consumer Protection from Deceptive Acts and Practices," and which includes General Business Law §§ 349 and 350, deals with practices which have a broad impact on consumers at large. There is no private cause of action, originating in a contractual dispute, based on the statute.

Student note: To successfully assert a claim under General Business Law §§ 349 or 350, a party must allege that its adversary has engaged in consumer-oriented conduct that is materially misleading, and that the party suffered injury as a result of the allegedly deceptive act or practice.

Case: Yellow Book Sales & Distrib. Co., Inc. v. Hillside Van Lines, Inc., NY Slip Op 06022 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Labor Law.

Court holiday.

The courts are closed to mark the Labor Day holiday.

Tomorrow's issue: Consumer protection from bad actors.

Forum selection clauses and improper venue.

Practice point: A forum selection clause may constitute documentary evidence sufficient to provide a proper basis for dismissal of a complaint pursuant to CPLR 3211(a)(1), such as where the forum selection clause provides that any dispute arising under the relevant agreement must be litigated in the courts of a state other than New York, in federal court, or in the courts of a country other than the United States.

Student note: Commencing an action in the proper court, but in an improper county, is not a jurisdictional defect requiring dismissal of the action.

Case: Lowenbraun v. McKeon, NY Slip Op 06016 (2d Dept. 2012).

Here is the decision.

Tuesday’s issue: Consumer protection from bad actors.