Medical malpractice, negligence, and nursing homes.

Practice point: In this medical malpractice and negligence action, defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting, among other things, their expert affirmation and medical records. The medical records supported defendants' expert's opinion that decedent's chronic skin ulcers, gangrene and above-the-knee amputations, were the unavoidable result of his preexisting, chronic conditions, as well as other risk factors.

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff submitted the conclusory and speculative affirmation of an unnamed expert who failed to identify specific departures made by the nursing home, when other actions should have been taken by the nursing home and by whom, and how the results would have been different had those actions been taken.  The court found these failures especially troublesome, given plaintiff's expert's concession that decedent's preexisting conditions placed him at an increased risk for the conditions at issue.

Student note: In addition, the expert failed to address the evidence supporting vascular involvement and failed to establish that the nursing home's negligence, and not the natural progress of decedent's diseases and conditions, was a substantial factor in producing the injury.

Case: Negron v. St. Barnabas Nursing Home, NY Slip Op 02468 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Accord and satisfaction.

Legal malpractice.

Practice point: A client is not barred from a legal malpractice action where there is a signed settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel.

Student note: For a claim for legal malpractice to be successful, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney's negligence.

Case: Angeles v. Aronsky, NY Slip Op 02454 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:Medical malpractice, negligence, and nursing homes.

Statute of frauds.

Practice point: A party's admission of the existence and essential terms of an oral agreement is sufficient to take the agreement out of the statute of frauds.

Student note: However, if the parties dispute the very terms and conditions of the alleged oral agreement, the statute of frauds applies.

Case: Camhi v. Tedesco Realty, LLC, NY Slip Op 02368 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Legal malpractice.

Motions for renewal and reargument.

Practice point: The motion for renewal and reargument presented neither new facts nor a change in the law and was therefore a motion for reargument only, pursuant to CPLR 2221[e][2].

Student note:. An order that denies a motion for reargument is not appealable.

Case: D&A Constr., Inc. v. New York City Hous. Auth., NY Slip Op 02341 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Statute of frauds.

Discovery and striking a pleading.

Practice point: Defense counsel asserted that he could not produce the individual defendant for deposition because he could not secure his cooperation or locate him. The defendants failed to substantiate a reasonable excuse for the individual defendant's failure to appear for a court-ordered deposition. In addition, the defendants failed to demonstrate a reasonable excuse for the corporate defendant's failure to appear at a court-ordered deposition. Accordingly, the Supreme Court providently exercised its discretion in issuing a conditional order requiring the defendants to appear for depositions within a specified time or face the sanction of striking their answer.

When the defendants failed to appear for their court-ordered depositions within the specified time, the conditional order became absolute.To be relieved of the order's striking their answer, the defendants were required to demonstrate a reasonable excuse for their failure to appear for depositions and a potentially meritorious defense.The defendants failed to demonstrate either, and their answer was properly stricken. As a result of having their answer stricken, the defendants were deemed to admit all traversable allegations in the complaint, including the basic allegation of liability. Accordingly, the Supreme Court properly granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability.

Student note: A court may issue an order striking out pleadings or rendering a judgment by default as a sanction against a party who refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, pursuant to CPLR 3126[3]. While actions should be resolved on the merits when possible, a court may strike an answer upon a clear showing that the failure to comply with a disclosure order was the result of willful and contumacious conduct.

Case: Almonte v. Pichardo, NY Slip Op 02209 (2d Dept. 2013).

Here is the decision.

Monday's issue: Motions for renewal and reargument.

Slip and fall, and precluding a theory of liability.

Practice point:  Plaintiff alleged that she was injured when she slipped and fell on a wet foliage condition located on defendant's grounds. Defendant made a prima facie showing of entitlement to summary judgment as to this open and obvious condition, which was not inherently dangerous. Defendant's meteorologist stated that the wind was sufficient to create the foliage condition and that light rain, two hours earlier, accounted for the wetness of the leaves. Moreover, defendant's grounds' supervisor stated that the grounds crew took reasonable efforts to remove fallen foliage from the development's extensive property, by patrolling the grounds daily. Under the circumstances, defendant established that it met its duty to maintain its property in a reasonably safe condition.

Student note: Plaintiff's theory of liability that the slippery condition was caused by insufficient drainage for the sprinkler system was raised for the first time in opposition to the motion. The theory was precluded since it was not set forth in the notice of claim.

Case: Verdejo v. New York City Hous. Auth., NY Slip Op 02323 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Discovery and striking a pleading.

The inadmissibility of hearsay hospital notes.

Practice point: The Appellate Division determined that it was harmful error for the trial court to admit into evidence the hearsay hospital notes of the orthopedic surgeon who examined plaintiff after her accident. According to the doctor's notes, plaintiff stated that she slipped and fell on wet ground and complained of severe right ankle pain. However, at trial the doctor testified that he only assumed that the statement came from plaintiff. Moreover, the doctor admitted that he did not recognize plaintiff and had no independent recollection of the case. In addition, his original history notes were discarded, and he was unsure from whence he received the information.

Student note: Generally, admissions not germane to the treatment or diagnosis of a plaintiff's injuries are not admissible under the business records exception to the hearsay rule. A hearsay entry in a hospital record as to the cause of an injury may be admissible, even if not germane to diagnosis, if the entry is inconsistent with a position taken at trial. However, there must be evidence that connects the party to the entry.

Case: Grant v. New York City Transit Authority, NY Slip Op 02318 (1st Dept. 2013).

 Here is the decision.

Tomorrow's issue: Slip and fall, and precluding a theory of liablity.

Vacating a default.

Practice point:  In deciding a motion to vacate a default, the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. A general assertion that the default was occasioned by the defendant's insurance broker or liability carrier is insufficient. Here, the defendant's unsubstantiated claims that he believed that his insurance broker had forwarded the summons and complaint to his insurer and that his insurer was providing a defense are unreasonable given that the defendant was served with the plaintiff's motion for leave to enter a default judgment.

Student note: The defendant's claim that he did not receive the plaintiff's motion for leave to enter a default judgment, the default order, and other papers related to this action because the address to which they were mailed did not contain his unit number was improperly raised for the first time on appeal and therefore was not properly before the Appellate Division.

Case: Spitzer v. Landau, NY Slip Op 02067 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:The inadmissibility of hearsay hospital notes.

Defaults and damages.

Practice point:  A defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff's conclusion as to damages.

Student note: Where an entry of a default judgment against a defendant is made after an application to the court, the defendant is entitled to a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages.

Case: Rawlings v. Gillert, NY Slip Op 02063 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Vacating a default.

Motions to dismiss.

Practice point: A motion to dismiss, pursuant to CPLR 3211(a)(1), 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: When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering the motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Whether a plaintiff can ultimately establish its allegations is not part of the calculus.

Case: Faith Assembly v. Titledge of N.Y. Abstract, LLC, NY Slip Op 02046 (2d Dept. 2013).

Here is the decision.

Monday's issue: Defaults and damages.

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.