Experts' opinions, and motions to dismiss a medical malpractice claim.

Practice point:  In opposing the motion to dismiss, plaintiff's expert simply asserted that defendant's physician, instead of putting the ankle in a splint, should have performed a surgical open reduction and internal fixation of the fracture. Plaintiff's expert, however, neither set forth an explanation of the reasoning supporting his conclusion nor identified any facts in the record indicating his preferred course of treatment. Nor did plaintiff's expert opine whether plaintiff's outcome would have been materially better had he been treated with surgery.

Student note: Because the opinion was offered in a conclusory fashion without specific analysis, the motion court correctly determined that plaintiff failed to raise a triable issue of fact in the face of the well-supported opinion of defendant's expert that the record facts showed that defendant's physician treated plaintiff appropriately under the governing standard of care.

Case: Buckner v. St. Lukes' Roosevelt Hosp. Ctr., NY Slip Op 01167 (1st Dept. 2013).

 Here is the decision.

Monday's issue: Labor Law § 240(1).
 

Striking an anwer.

Practice point:  Appellate Division found that Supreme Court erred, as a matter of law, in denying plaintiffs' cross motion to enforce the conditional order striking defendant's answer since defendant did not produce the specified materials within the identified time period, and did not establish both a reasonable excuse for its failure to timely produce the specified materials and the existence of a meritorious claim or defense. Where a conditional order had previously been entered based on the court's findings that a party had caused delay and failed to comply with the court's discovery orders, the court was not required to find that defendant's conduct in failing to comply with the conditional order was willful.

Student note: Alternatively, defendant's failure to timely comply with three court orders directing it to produce certain materials - one of which was a conditional order striking its answer if defendant did not comply within 45 days - warrants an inference of willful noncompliance.

Case: Keller v. Merchant Capital Portfolios, LLC, NY Slip Op 01163 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Experts' opinions, and motions to dismiss a medical malpractice claim.

A fall down the stairs.

Practice point: Plaintiff fell on a backstage staircase to which she had been sent to clean off accumulated debris. Although plaintiff testified that there was "poor lighting" on the staircase where she fell, she testified that she fell because the step was uneven or pitched forward. Thus, plaintiff failed to submit sufficient evidence to raise an issue of fact as to whether the alleged poor lighting was a proximate cause of her fall.

Student note:  Plaintiff's expert's opinion that the stairs violated Administrative Code of the City of New York former §§ 27-127 and 27-128 was unavailing. Those sections merely require that the owner of a building maintain and be responsible for its safe condition, and liability will not be imposed in the absence of a breach of some specific safety provision.

Case: Ortiz v. Rose Nederlander Assoc., Inc., NY Slip Op 01156 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Striking an answer.

Replevin, and orders of seizure.

Practice point: The action of replevin is essentially possessory in its nature. It is a provisional remedy which may be used as an incident to an action to recover a chattel. Pursuant to CPLR 7102(c) and (d), on a motion for an order of seizure, "a plaintiff must demonstrate a likelihood of success on its cause of action for replevin and the absence of a valid defense to its claim.

Student note: An order of seizure is not a final disposition of a matter but is a pendente lite order made in the context of a pending action where the movant has established, prima facie, a superior right in the chattel.

Case: Americredit Fin. Servs., Inc. v. Decoteau, NY Slip Op 01053 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: A fall down the stairs.

Failure to appear at a hearing.

Practice point: To vacate an order entered upon failure to appear at a hearing to determine the validity of service, the movant must demonstrate both a reasonable excuse for the default and a potentially meritorious position at the hearing. The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court.

Student note: Although a court has the discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005, a conclusory, undetailed, and uncorroborated claim of law office failure does not amount to a reasonable excuse.

Case: Eastern Sav. Bank, FSB v. Charles, NY Slip Op 00892 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Replevin, and orders of seizure.

School's duty to supervise.

Practice point: A school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent.  A school, however, is not an insurer of its students' safety, and will be held liable only for foreseeable injuries proximately related to the absence of adequate supervision.

Student note: Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the school is warranted.

Case: Diaz v. City of Yonkers, NY Slip Op 00891 (2d Dept. 2013).

Here is the decision.

Monday’s issue: Failure to appear at a hearing.

Deposing a participant in the witness program.

Practice point: A participant in the witness protection program cannot use that participation as a shield from the adverse effects of the litigation the participant has initiated, especially where the subsequent action is not related to the criminal action which triggered the need for the participation in the first place.

Student note: CPLR 3101(a) requires full disclosure of all matter material and necessary in the prosecution or defense of an action. Material and necessary information is that which is required to be disclosed because it bears upon the controversy at issue and will assist the requesting party in preparing for trial. Courts will interpret discovery requests liberally in favor of disclosure.

Case: M.C. v. Sylvia Marsh Equities, Inc., NY Slip Op 00888 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: School’s duty to supervise.

Hit by intoxicated bar patron.

Practice point: Summary judgment was denied where plaintiff alleged that he was injured when he was struck in the face by a visibly intoxicated patron of the tavern on the sidewalk outside the premises. The record presented triable issues as to whether there was a reasonable or practical connection between the sale of alcohol to a visibly intoxicated patron and the resulting injuries.

Student note: Although the tavern's bartender stated that the patron did not appear to be visibly intoxicated, plaintiff testified to the contrary, and two other witnesses submitted affidavits stating that prior to the assault the patron had been served alcohol by the tavern while visibly intoxicated, inasmuch as he was unsteady, aggressive and boisterous. The record also raised issues as to whether appropriate security measures were taken after the bartender allegedly defused an initial confrontation between the patron and plaintiff's group while inside the bar.

Case: Carver v. P.J. Carney’s, NY Slip Op 00805 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Deposing a participant in the witness protection program.

Mutual mistake and contract law.

Practice point: Mutual mistake may furnish the basis for the reformation of a written agreement where the signed writing does not express the actual agreement of the parties. Parol evidence is admissible to establish the actual agreement. However, there is a heavy presumption that the executed agreement reflects the true intention of the parties, and a correspondingly high order of evidence is required to overcome the presumption.

Student note: Thus, where a written agreement between sophisticated, counseled businesspersons  is unambiguous on its face, one party cannot defeat summary judgment by a conclusory assertion that, owing to mutual mistake or fraud, the writing did not express his or her own understanding of the oral agreement reached during negotiations.

Case: West Vernon Petroleum Corp. v. Singer Holding Corp., NY Slip Op 0073d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Hit by intoxicated bar patron.

Court holiday.

The Courts are closed to mark the holiday.

Tomorrow's issue: Mutual mistake and contract law.

Applications for leave to discontinue.

Practice point: An application for leave to discontinue an action without prejudice is addressed to the legal, not the arbitrary, discretion of the court, and thus should be granted unless there are reasons which would justify its denial.

Student note: The general rule is that plaintiff should be permitted to discontinue the action unless defendant would be prejudiced thereby.

Case: Wells Fargo Bank, N.A. v. Fisch, NY Slip Op 00732 (2d Dept. 2013).

Here is the decision.

Tuesday’s issue: Mutual mistake and contract law.