Pain and suffering, and expert witnesses.

Practice point: A claim to recover damages for conscious pain and suffering requires proof that the injured party experienced some level of cognitive awareness following the injury. Mere conjecture, surmise or speculation is not enough to sustain a claim for such damages.

Student note: A jury is not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination. Rather, a jury is at liberty to reject an expert's opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion.
Determinations regarding the credibility of expert witnesses are entitled to great weight on appeal, as the jury had the opportunity to observe and hear the experts.

Case: Curry v. Hudson Val. Hosp. Ctr., NY Slip Op 02043 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:Motions to dismiss.

Judgments as a matter of law CPLR 4401

Practice point: The Appellate Division's decision and order in a prior appeal, determining that questions of fact existed precluding summary judgment in the plaintiff's favor, did not decide that there necessarily would be established an issue of fact at the trial which would have to be determined by a jury. So, the Appellate Division's determination on the summary judgment motion did not preclude the plaintiff from seeking judgment as a matter of law upon the close of evidence at trial, and did not require the automatic denial of such a motion.

Student note: To succeed on a motion for judgment as a matter of law pursuant to CPLR 4401, a party has the burden of showing that there is no rational process by which the jury could find in favor of the opposing party and against him or her.

Case:  Coates v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., NY Slip Op 02041 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Pain and suffering, and expert witnesses.

Curing a defective complaint.

Practice point:  In a prior appeal in this action, the Appellate Division held that plaintiffs could not rely on the relation-back provisions in CPLR 203(f) to cure their defective initial complaint, based on their failure to comply with the subject agreements' condition precedent to commencing an action, since the doctrine is dependent upon the existence of a valid preexisting action. However, on this appeal, the Appellate Division found that the savings clause of CPLR 205(a) does not bar plaintiffs' action, since the statute was created to serve in those cases in which the prior action was defective and so had to be dismissed.

Student note: The dismissal of the prior action for plaintiffs' failure to comply with a condition precedent was not a judgment on the merits, and plaintiff commenced a new action within the six-month period required by CPLR 205(a).

Case: Southern Wine & Spirits of Am., Inc. v. Impact Envtl. Eng'g, PLLC, NY Slip Op 02146 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Judgments as a matter of law CPLR 4401

Validity of service.

Practice point: It is the plaintiff's burden to prove, by a preponderance of the evidence, that jurisdiction over the defendant was obtained by proper service of process. A process server's affidavit ordinarily constitutes a prima facie showing of proper service.

Student note: Where the defendant submits a sworn denial which specifically refutes the process server's affidavit, the prima facie showing is rebutted and the plaintiff must establish jurisdiction, by a preponderance of the evidence, at a hearing.

Case: Aurora Loan Servs., LLC v. Gaines, NY Slip Op 02034 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Curing a defective complaint.

Money judgments.

Practice point: Pursuant to CPLR 211(b), a money judgment is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to enforce it. This presumption is conclusive, except as against a person who within the twenty years acknowledges an indebtedness, or makes a payment, of all or part of the amount recovered by the judgment, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing and signed by the person to be charged. If such an acknowledgment or payment is made, the judgment is conclusively presumed to be paid and satisfied as against any person after the expiration of twenty years after the last acknowledgment or payment made by him.

Student note: Accordingly, unless the party against whom a money judgment is granted acknowledges the indebtedness in a signed writing, the statute of limitations for an action to collect on a money judgment is 20 years from the date that the judgment can first be enforced. If, however, a party acknowledges the indebtedness to a money judgment, the statute of limitations runs anew, and is then 20 years from the last acknowledgment.

Case: First N.Y. Bank for Bus. v. Alexander, NY Slip Op 01796 (1st Dept. 2013).

Here is the decision.

Monday's issue: Validity of service.

Sua sponte dismissal, and standing.

Practice point:  Appellate Division found that the Supreme Court abused its discretion in, sua sponte, directing dismissal of the complaint with prejudice and cancellation of a notice of pendency. Appellate Division noted that a court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal. Here, there were no such extraordinary circumstances.

Student note: In addition, Appellate Division held that, as the defendants failed to answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing. In any event, a party's lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint by the court.

Case:  HSBC Bank USA, N.A. v. Taher, NY Slip Op 01806 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Money judgments.

Split in the Departments on leave to amend.

Practice point:  The First Department found that the  motion court properly exercised its discretion in granting leave to amend inasmuch as the original complaint placed the defendant on notice of the underlying transaction, pursuant to CPLR 203 [f]. The First Department is in accord with the Third Department's view that "[i]n the absence of any prejudice and under these circumstances, Supreme Court should be permitted to exercise that same discretion which would allow the addition of a plaintiff's derivative cause of action." Anderson v. Carney, 161 AD2d 1002, 1003 (1990).
 
Student note: The First Department disagreed with the cases holding that a spouse's derivative claim cannot be added to a complaint through the relation back provision of CPLR 203 (f), specifically, Dowdall v. General Motors Corp. 34 A.D.3d 1221 (4th Dept. 2006) and Lucido v. Vitolo, 251 AD2d 383 (2d Dept 1998).

Case: Giambrone v. Kings Harbor Multicare Ctr., NY Slip Op 01898 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Sua sponte dismissal, and standing.

Labor Law § 240(1).

Practice point:  Labor Law § 240(1) imposes a nondelegable duty upon owners, contractors, or their agents to provide proper protection to a worker performing certain types of construction work. To prevail on the cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries.

Student note: A fall from a scaffold or ladder, in and of itself, does not establish that proper protection was not provided, and the issue of whether a particular safety device provided proper protection is generally a question of fact for the jury.

Case:  Esteves-Rivas v. W2001Z/15CPW Realty, LLC, NY Slip Op 01800 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Split in the Departments on leave to amend.

Injured in an elevator.

Practice point: Plaintiff was injured while riding in an elevator in defendant's apartment building. On her way up to her fifth-floor apartment, the elevator stopped at the third floor. After a fellow passenger left the elevator cab, the outer door failed to swing completely shut. Plaintiff pushed the door open with both hands, attempting to let the door swing shut on its own, but a gap of several inches remained between the door and the door jamb. After two such attempts to close the door proved unsuccessful, plaintiff reached around the edge of the door with her right hand and pulled it toward her, whereupon the door swung closed onto her hand, injuring the middle and ring fingers.

The alleged malfunction of the third-floor elevator door notwithstanding, the defect was not the proximate cause of plaintiff's injury, which was the immediate result of her own act of pulling the door onto her own hand. This act was not foreseeable in the normal course of events resulting from defendant's alleged negligence. Having no interior handle, the elevator door is not designed to be pulled inward, and plaintiff's doing so superseded any defect in the door's condition, severing the nexus between defendant's asserted negligence and plaintiff's injury.

Student note: Plaintiff conceded that both a stairway and a second elevator afforded safe, alternative access to her fifth floor, and she did not face any circumstances that required her to continue using the defective elevator.

Case: Arbeau v. New York City Housing Authority, NY Slip Op 01773 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Labor Law 240(1).

Compensation for pain and suffering.

Practice point:  The jury's determination will not be disturbed unless the award deviates materially from what would be reasonable compensation.

Student note: The reasonableness of compensation must be measured against relevant precedent of comparable cases.

Case: Kayes v. Liberati, NY Slip Op 01534 (2d Dept. 2013).

Here is the decision.

Monday's issue: Injured in an elevator.

Hospital liability and private physicians.

Practice point: A hospital is ordinarily not liable for the acts of a private attending physician unless a patient, in accepting treatment by the private physician, relies upon the fact that the physician's services are provided by the physician as the hospital's apparent agent, such as where the patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing.

Student note: Where apparent agency is established as a predicate for holding the hospital responsible for the alleged malpractice, liability is contingent upon the plaintiff having a viable claim against the treating physician.

Case: Polgano v. Christakos, NY Slip Op 01615 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Compensation for pain and suffering.