Bad weather, a bad fall, and a bad result for the injured plaintiff.

Practice point:  A property owner is not obligated to provide a constant remedy to the problem of water being tracked into a building during inclement weather, and has no obligation to cover all of its floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation.

Here, both the owner and the tenant established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them. They each presented evidence that they had not created the alleged defective condition, and the owner also presented evidence that it had neither actual nor constructive notice of the alleged defective condition, namely., the alleged presence of water on the vestibule floor of the subject building. In opposition, the plaintiff failed to raise a triable issue of fact.

Student note:  A tenant ordinarily owes no duty of care with respect to a dangerous condition in the building's common areas.

Case:  Paduano v. 686 Forest Ave., LLC, NY Slip Op 05415 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An oral contract and taxi medallions.

Motion to amend the complaint is granted.

Practice point:  The Appellate Division reversed the motion court's denial of plaintiff's motion pursuant to CPLR 3025(b) for leave to serve a second amended complaint to add a cause of action to recover damages for negligence per se and a claim for punitive damages. Defendants did not allege that the proposed amendment would result in any prejudice or surprise. Indeed, plaintiff's motion was made prior to the filing of the note of issue, and was predicated on information supplied by defendants during disclosure.  Further, the proposed amendment was not palpably insufficient or patently devoid of merit.  Finally, the motion court erred in prematurely determining that the proposed amendment "would invite the jury to speculate."  The rule is that if the opposing party wishes to test the merits of the proposed added cause of action, that party may later move for summary judgment upon a proper showing.

Student note:  An evidentiary showing of merit is not required under CPLR 3025(b).  Instead, the court need only determine whether the proposed amendment is palpably insufficient' to state a cause of action or defense, or is patently devoid of merit. The court may not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt.

Case:  Favia v. Harley-Davidson Motor Co., Inc., NY Slip Op 05408 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Bad weather,  a bad fall, and a bad result for the injured plaintiff.

A medical malpractice action based on a psychiatric consultation.

Practice point:  The plaintiff had gone by ambulance to the hospital complaining of feeling overwhelmed by stress. An emergency room physician concluded that plaintiff's symptoms were consistent with depression, and ordered several tests and a psychiatric consultation. After some of the test results came back, the emergency room physician telephoned defendant-psychiatrist for the consultation. The emergency room physician advised him that she anticipated that plaintiff would be medically cleared, and asked defendant to confirm her initial assessment that plaintiff was not suicidal or a risk to others and, thus, would not require involuntary admission. Defendant reviewed the plaintiff's chart, looking for any indication that he had suicidal or homicidal ideation. Then, after performing his evaluation, defendant concluded that plaintiff was not a danger to himself or others and would not require involuntary admission. Defendant offered plaintiff a referral for outpatient psychiatric treatment for depression. As defendant was gathering information regarding the outpatient referral, plaintiff and his partner left the hospital before being formally discharged by the emergency room physician, who was still waiting for medical test results and overseeing treatment. Plaintiff became unresponsive in the cab ride home and returned to the emergency room about 45 minutes later. He was reexamined and, after a neurological consultation, it was determined that he had suffered a stroke.

Plaintiff sued, among others, defendant-psychiatrist, against whom he alleged a departure from acceptable medical practices by not performing a neurological examination and thereby ruling out a neurological etiology for his symptoms; by not developing a list of differential diagnoses; and by not referring plaintiff for further diagnostic studies to work up neurological problems. The Supreme Court denied defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

The Appellate Division reversed, finding that defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that his duty of care as a consulting psychiatrist did not extend to the departures alleged by the plaintiff.  Where, as here, plaintiff was being actively treated by an emergency room physician for any medical causes of his symptoms, and exhibited no clear signs of neurological problems at the time, defendant had no duty beyond properly performing an evaluation to determine whether plaintiff was a danger to himself or others and would require involuntary admission for depression. The Appellate Division found that, in opposition, the plaintiff failed to raise a triable issue of fact.

Student note:  A physician's general duty of care to the patient may be limited to those medical functions undertaken by the physician and relied on by the patient.

Case:  Chin v. Long Is. Coll. Hosp., NY Slip Op 05406 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Motion to amend the complaint is granted.

An injured firefighter's suit sounding in negligence.

Practice point:  General Municipal Law § 205-a establishes the right of an injured firefighter to recover against any party whose negligence in failing to comply with governmental requirements results directly or indirectly in the firefighter's injury. While recovery does not require proof of such notice as would be necessary to a cause of action alleging common-law negligence, the plaintiff still must establish that the circumstances surrounding the violation indicate that it was a result of neglect, omission, or willful or culpable negligence on the defendant's part. Here, defendant established, prima facie, that the alleged violations were not the result of neglect, omission, or willful or culpable negligence on his part, and, in opposition, plaintiffs failed to raise a triable issue of fact.

Student note:  General Obligations Law § 11-106 largely abolished the former so-called "firefighter's rule" by allowing firefighters to assert causes of action sounding in negligence for injuries suffered while in the line of duty against entities other than municipal employers and fellow workers.

Case:  Cassidy v. Korik, NY Slip Op 05405 (2d Dept. 2014)

Here is the decision.

Monday's issue:  A medical malpractice action based on a psychiatric consultation.

A motion to dismiss for failure to prosecute is denied.

Practice point:  On receipt of plaintiffs' 90-day notice, defendants did not file a note of issue within 90 days.. However, plaintiffs refused certain requests to schedule a continued deposition of the injured defendant, and, after the notice was served, both parties demonstrated an intent to proceed with discovery. Further, there is no evidence that plaintiffs were prejudiced by the minimal delay involved in this case, nor is there a pattern of persistent neglect and delay in prosecuting the action. Neither is there any indication of an intent to abandon the action. Under these circumstances, the Appellate Division affirmed the Supreme Court's exercise of its discretion in excusing defendants' failure to meet the deadline for filing the note of issue.

Student note:  CPLR 3216 is extremely forgiving in that it does not require, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed. While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a meritorious cause of action, such a dual showing is not strictly necessary to avoid dismissal.

Case:  Altman v. Donnenfeld, NY Slip Op 05402 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An injured firefighter's suit sounding in negligence.

An untimely cross-motion for summary judgment.

Practice point:  The Appellate determined that the Supreme Court improvidently exercised its discretion in denying as untimely plaintiff's cross-motion for summary judgment. While the motion was made more than 120 days after the note of issue was filed and, therefore, was facially untimely, an untimely motion for summary judgment may be considered by the court where, as here, a timely motion was made on nearly identical grounds. The rationale is that the issues raised by the untimely motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause, pursuant to CPLR 3212 [a], to review the merits of the untimely motion.

Student note:  The court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party.

Case:  Wernicki v. Knipper, NY Slip Op 05324 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A motion to dismiss for failure to prosecute is denied.

Denial of a motion to dismiss on a general release and waiver.

Practice point:  The defendants presented proof, in the form of the general release and the waiver, demonstrating their prima facie entitlement to judgment as a matter of law dismissing the complaint and on their counterclaim for a judgment declaring that the mechanic's liens against their property are null and void. However, in opposition, the plaintiffs submitted proof raising triable issues of fact regarding, among other things, whether the parties' intentions were reflected by the terms of the general release and the waiver.

Student note:  Generally, a valid release that is clear and unambiguous on its face constitutes a complete bar to an action on a claim which is the subject of the release absent fraudulent inducement, fraudulent concealment, misrepresentation, mutual mistake or duress.

Case: Patti Constr. Corp. v 111-16 Atl. Ave. Realty Corp., NY Slip Op 05311 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An untimely cross-motion for summary judgment.

Return of down-payment on contract for sale of real property.

Practice point:  To prevail on the cause of action, the plaintiff must establish that the defendant breached or repudiated the contract and that the plaintiff was ready, willing, and able to perform on the closing date. The rule is that, where the vendor's title is incurably defective, a vendee can recover the money paid on the contract from a defaulting vendor, without a showing of tender or even of willingness and ability to perform, but a tender and demand are required to put the vendor in default where title could be cleared without difficulty in a reasonable time. In that latter situation, the seller is entitled to a reasonable time to make the title good. When the vendor is on notice of the defect prior to the scheduled closing date and does nothing to correct it until after the closing date, the purchaser need not tender performance,  as such tender would be meaningless.

Student note:  Where a seller seeks to hold a purchaser in breach of contract, the seller must establish that he or she  was ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for its failure to close.

Case:  Martocci v. Schneider, NY Slip Op 05308 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Denial of a motion to dismiss on a general release and waiver.

A fall on the ice, out of season but actionable.

Practice point:  Defendant failed to establish that it lacked constructive notice of a large layer of ice which allegedly caused the plaintiff to slip and fall in the defendant's parking lot.  At a hearing held pursuant to General Municipal Law § 50-h, and at her deposition, the plaintiff testified that she had seen the ice condition the evening before the accident when she parked her car in the lot. In support of its motion, the defendant failed to establish that ice was not present when it last inspected or cleaned the area. In addition, the defendant failed to eliminate all triable issues of fact as to whether the large layer of ice upon which the plaintiff allegedly slipped was created by the defendant's snow removal efforts in the days prior to the accident.

Student note:  A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of plaintiff's fall.

Case:  Dhu v. New York City Hous. Auth., NY Slip Op 05300 (2d Dept. 2014) 

Here is the decision.

Monday's issue: Return of down-payment on contract for sale of real property.

The City's Human Rights Law and an allegation of discrimination based on disability.

Practice point:  Here, the defendant met its burden of demonstrating entitlement to judgment as a matter of law by offering evidence that the plaintiff, at the time of his discharge, was not suffering from a disability that would require an accommodation.
In any event, said the Appellate Division, there was a legitimate, nondiscriminatory
reason for his termination of employment. In opposition, the plaintiff failed to raise a
triable issue of fact.

Student note:  The New York City Human Rights Law prohibits an employer from discriminating against an individual who is disabled, pursuant to Administrative Code
of City  of NY § 8-107[15]).

Case:  Caban v. New York Methodist Hosp., NY Slip Op 05292 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A fall on the ice, out of season but actionable.

Defamation and the single publication rule.

Practice point:  Under the rule, the publication of a defamatory statement in a single issue of a newspaper or magazine, although widely circulated and distributed, constitutes one publication, which gives rise to one cause of action, and the statute of limitations runs from the date of that publication.

An exception to the rule has been applied when the following factors are present:  the subsequent publication is intended to and actually reaches a new audience; the second publication is made on an occasion distinct from the initial one; the republished statement has been modified in form or in content; and the defendant has control over the decision to republish. So, repetition of a defamatory statement in a later edition of a book, magazine or newspaper may give rise to a new cause of action.

Student note:  The rule applies to publications on the Internet, and so continuous access to an article posted via hyperlinks to a website is not a republication.

Case:  Martin v. Daily News L.P., NY Slip Op 05369 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The City's Human Rights Law and an allegation of discrimination based on disability.