November 23, 2012
Medical malpractice, and experts' opinions.
Practice point: When a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered.
Student note: Even if the defendant-physician did depart from accepted practice, plaintiff cannot defeat summary judgment if the expert’s assertion that this departure proximately caused the plaintiff's injuries is purely speculative.
Case: Bey v. Neuman, NY Slip Op 07262 (2d Dept. 2012).
Here is the decision.
Monday’s issue: Motions for leave to renew.
November 22, 2012
Court holiday.
The courts are closed to mark Thanksgiving Day.
Tomorrow's issue: Medical malpractice, and experts' opinions.
Tomorrow's issue: Medical malpractice, and experts' opinions.
November 21, 2012
More than one proximate cause, and comparative fault.
Practice point: There can be more than one proximate cause of an accident.
Student note: Therefore, the proponent of a summary judgment motion has the burden of establishing freedom from comparative fault as a matter of law.
Case: Antaki v. Mateo, NY Slip Op 07261 (2d Dept. 2012).
Here is the decision.
Friday’s issue: Medical malpractice, and experts’ opinions.
November 20, 2012
Liability when a non-owner is driving.
Practice point: Proof of ownership of a motor vehicle creates a rebuttable presumption that the driver was using the vehicle with the owner's permission, express or implied.
Student note: A finding of constructive consent requires a consensual link between the negligent operator and one whose possession of the car was authorized.
Case: Fiduciary Ins. Co. of Am. v. Jackson, NY Slip Op 07200 (1st Dept. 2012).
Here is the decision.
Tomorrow’s issue: More than one proximate cause, and comparative fault.
November 19, 2012
Collapsed ceiling, and late discovery demands.
Practice point: Plaintiff's complaints of the collapse of her bathroom ceiling and portions of her living room ceiling 15 months before the collapse of the living room ceiling raise an issue of fact whether defendants were on constructive notice of a defect. To the extent the record is ambiguous as to the cause of the ceiling collapse, there are issues of fact as to defendants' duty to inspect the ceilings and the applicability of the doctrine of res ipsa loquitur.
Student note: Since defendants did not disclose the existence of documents previously ordered produced, or the identity of a witness with knowledge until their deposition just before the note of issue was filed, plaintiff's last-minute renewed demand for this discovery was justified.
Case: Lisbey v. Pel Park Realty, NY Slip Op 07212 (1st Dept. 2012).
Here is the decision.
Tomorrow’s issue: Liability when a non-owner is driving.
November 16, 2012
Liability for injuries to a special employee.
Practice point: Plaintiff was employed as a contract travel nurse at the defendant-hospital, and, at the cafeteria during her assigned lunch-time, she slipped and fell while waiting in line to pay one of the cashiers.
A special employee is one who is transferred, for a limited time of whatever duration, to the service of another. When an employee is eligible to receive Workers' Compensation benefits from his general employer, a special employer is shielded from any action at law commenced by the employee, pursuant to Workers' Compensation Law § 29[6].
Student note: The key to the determination is a fact-intensive inquiry into who controls and directs the manner, details, and ultimate result of the employee's work.
Case: Warner v. Continuum Health Care Partners, Inc., NY Slip 07211 (1st Dept. 2012).
Monday’s issue: Collapsed ceiling, and late discovery demands.
November 15, 2012
Suing the Transit Authority.
Practice point:Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against the Transit Authority, pursuant to General Municipal Law § 50-e[1][a]; § 50-i[1][a], and Public Authorities Law § 1212[2]. In determining whether to extend the time to serve, the court will consider whether the public corporation received actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter; whether the claimant has a reasonable excuse for the failure to serve a timely notice; and whether the delay would substantially prejudice the public corporation in its defense on the merits.
Student note: Here, petitioner failed to demonstrate that the Transit Authority acquired actual knowledge of the essential facts constituting the claim within 90 days after the accident or within a reasonable time thereafter. Even though the petitioner consulted with an attorney and served a notice upon the City of New York approximately one week after the accident, he did not serve a notice upon the Transit Authority or commence this proceeding until more than four months after the consultation. The Transit Authority did not have any knowledge of the petitioner's accident and injury, or the legal theory on which liability was predicated against it prior to being served with papers in the instant proceeding. Furthermore, the petitioner failed to demonstrate a reasonable excuse for his delay. The petitioner's excuse that he only recently came to realize that he may have a claim against the Transit Authority was unacceptable. Finally, the petitioner failed to show that the delay had not deprived the Transit Authority of the opportunity to find witnesses promptly or otherwise conduct a timely and meaningful investigation in this matter.
Case: Abromovitz v. City of New York, NY Slip Op 07108 (2d
Dept. 2012).
Tomorrow’s issue: Liability for injuries to a special
employee.
November 14, 2012
Leave to amend to increase the ad damnum clause.
Practice point: In applying for to leave to amend the
complaint to increase the ad damnum clause, pursuant to CPLR 3025[b], a
petitioner is required to submit a physician's affirmation (1) showing a causal
connection between her condition and the accident, and (2) specifying the
claimed change in her condition, including any injuries that had not been previously
considered, or the extent to which the condition had worsened.
Student note: Here, the application was denied because petitioner
submitted a physician's affirmation which failed to establish that the
increased injuries to her lower back which required surgery were causally
related to the subject motor vehicle accident, as it failed to account for the
fact that the petitioner had claimed to have injured her lower back in
accidents that had occurred both prior and subsequent to the subject motor
vehicle accident.
Case: Matter of Sealy v. Morris, NY Slip Op 07116 (2d Dept. 2012).
Tomorrow's issue: Suing the Transit Authority.
November 13, 2012
Liquidated damages provisions.
Practice point: A contract clause is one for liquidated
damages if the amount of actual loss is incapable or difficult of precise
estimation, and the stipulated amount of damages bears a reasonable proportion
to the probable loss. Whether a contractual provision represents a liquidated
damages provision is a question of law.
Student note:
Liquidated damages provisions will be upheld only if the amount fixed is a
reasonable measure of the probable actual loss in the event of a breach. If the
amount fixed is grossly disproportionate to the amount of actual damages, then
the liquidated damages provision amounts to a penalty and will not be enforced.
Case: G3-Purves St.,
LLC v. Thomson Purves, LLC, NY Slip Op 06919 (2d Dept. 2012).
Tomorrow’s
issue: Leave to amend to increase the
ad damnum clause.
November 12, 2012
Court holiday.
The courts are closed to mark Veterans Day.
To all Veterans, thank you for your service, no matter where or when.
Tomorrow's issue is liquidated damages provisions.
To all Veterans, thank you for your service, no matter where or when.
Tomorrow's issue is liquidated damages provisions.
November 9, 2012
Defense based on documentary evidence.
Practice point: A defendant may move for judgment dismissing
a cause of action on the ground that a defense is founded upon documentary
evidence, pursuant to CPLR 3211[a][1]. The motion may be granted only where the
documentary evidence utterly refutes plaintiff's factual allegations,
conclusively establishing a defense as a matter of law.
Student note:
Materials that clearly qualify as documentary evidence include documents
reflecting out-of-court transactions such as mortgages, deeds, contracts, and
any other papers, the contents of which are essentially undeniable.
Case: Sands Point Partners Private Client Group v. Fidelity Natl. Tit. Ins. Co., NY Slip Op
07097 (2d Dept. 2012).
Tuesday's issue: Liquidated damages provisions.
Subscribe to:
Posts (Atom)