A fall down the stairs, and actionable defets.

Practice point:   The Appellate Division affirmed dismissal of the complaint claiming personal injuries sustained when plaintiff allegedly slipped on a marble step tread as he descended the stairs in defendants' building. The Appellate Division noted that plaintiff denied that any debris on the step caused his fall, and the photographs did not reveal any major defects.

Student note:   As a matter of law, the worn marble edge of the step on which plaintiff allegedly slipped is not an actionable defect.

Case:  Carrion v. Faulkner, NY Slip Op 04762 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Substitution of a party.

Denial of a motion for a default judgment.

Practice point:  The Appellate Division affirmed the denial of the motion and the order directing plaintiff to accept the answer.  The Appellate Division noted that while defendant's excuse for not timely answering -- confusion and inadvertence -- was not particularly compelling, it was sufficient.  In addition, the delay was relatively short, plaintiff suffered no prejudice, there is no evidence of willfulness, and there is a strong public policy in favor of resolving cases on the merits.

Student note:  As no default judgment had been entered, defendant was not required to demonstrate a meritorious defense, pursuant to CPLR 3012[d].

Case:  Marine v. Montefiore Health Sys., Inc., NY Slip Op 04725 (1st Dept. 2015)

Here is the decision.

Monday's issue: A fall down the stairs, and actionable defects.

Summary judgment in a discriminatory employment action.

Practice point:   To prevail on a motion for summary judgment in a discriminatory employment action, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual.

Student note:  A plaintiff alleging discrimination in employment has the initial burden to establish a prima facie case of discrimination. To meet this burden, the plaintiff must show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination.

The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision. To succeed on the claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason.

Case:  Cotterell v. State of New York, NY Slip Op 04601 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Denial of a motion for a default judgment.

Consolidation, joint trials, and venue.

Practice point:  In this medical malpratice action, the claims relate to treatment rendered at a hospital located in Nassau County.  Many of the individual defendants reside in Nassau County, and all of the individual defendants worked in Nassau County at the time of the alleged malpractice and lack of informed consent. The plaintiffs themselves resided in Nassau County at the time each action was commenced.

The Appellate Division determined that, under these circumstances, the Supreme Court providently exercised its discretion in granting those branches of the cross motions which were to place the venue of the consolidated action in Nassau County and denying that branch of the plaintiffs' motion which was to place venue in Queens County.

Student note:  When a trial court orders consolidation or joint trials under CPLR 602(a), venue should generally be placed in the county where jurisdiction was invoked in the first action. However, the court, in its discretion, may place venue elsewhere.

Case:  Castro v. Durban, NY Slip Op 04600 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in a discriminatory employment action.

Jury verdict in a bus driver negligence action.

Practice point:  The Appellate Division  found no basis for setting the jury verdict and affirmed the judgment in favor of defendant Transit Authority.  The jury's verdict, finding that defendant was not negligent, is supported by a fair interpretation of the evidence, given the evidence that, among other things, none of the other passengers fell

In addition, defense counsel's statements during summation as to why the bus driver may have stopped as it did were fair comments on the evidence.  Plaintiff's arguments regarding the prejudicial effect of the bus driver's absence at trial are unavailing. The court instructed the jury that it could accept or reject defendant's explanation for the driver's absence, and permitted the jurors to draw a negative inference from the absence. Defendant did not improperly use the driver's absence as both a sword and a shield.

 Student note:  Even if it were error to charge the emergency doctrine as part of negligence, plaintiff failed to adequately preserve its objection.

Case:  DiGennaro v. New York City Tr. Auth. (MTA), NY Slip Op 04584 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Consolidation, joint trials, and venue.

Summary judgment in a medical malpractice action.

Practice point:  On the motion, the defendant physician must make a prima facie showing that there was no departure from good and accepted medical practice, or that the plaintiff was not injured thereby.  If defendant has made such a showing, the burden shifts to plaintiff to submit evidentiary facts or materials to rebut defendant's showing, but only as to those elements on which defendant met the prima facie burden.

Student note:  The essential elements of a cause of action to recover damages for medical malpractice are a deviation or departure from accepted medical practice, and evidence that such departure was a proximate cause of injury.

Case:  Harris v. Saint Joseph's Med. Ctr., NY Slip Op 04449 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Jury verdict in a bus driver negligence action.

Notice of claim as a condition precedent.

Practice point:  Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to the commencement of a tort action against a public corporation or any employee thereof, pursuant to Education Law § 3813[2] and General Municipal Law §§ 50-e[1][a]; 50-i[1][a].

Student note:  A school district is a public corporation.

Case:  Cassidy v. Riverhead Cent. Sch. Dist., NY Slip Op 04442 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Summary judgment in a medical malpractice action.

CPLR 306-b and extending time.

Practice point:  The Appellate Division affirmed the motion court's denial of petitioner's request, made under the CPLR 306-b interest of justice standard, for an extension of time to personally serve the petition and amended petition.  Petitioner did not seek an extension of time until after the expiration of the four-month statute of limitations, pursuant to CPLR 217[1], and she failed to provide an excuse for the delay or for failing to timely serve.

Student note:  Petitioner's pro se status is not a reasonable excuse.

Case:  Druyan v. Board of Educ. of the City Sch. Dist. of the City of N.Y., NY Slip Op 04569 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Notice of claim as  condition precedent.

Summary judgment on a promissory note.

Practice point:  Plaintiff established prima facie entitlement to judgment as a matter of law by submitting the promissory note, the corresponding agreement between the parties, and her affidavit asserting that the defendants failed to pay the loan in accordance with the note's terms.

In opposition, however, defendant presented sufficient evidence to raise a triable issue of fact as to the applicability of the defense of usury, and the Appellate Division affirmed denial of the motion.

Student note:  To establish prima facie entitlement to judgment as a matter of law with respect to a promissory note, a plaintiff must show the existence of a promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note's terms. plaintiff makes such a showing, the burden shifts to defendant to establish by admissible evidence the existence of a triable issue of fact with respect to a bona fide defense.

Case:  Ahern v. Miloslau, NY Slip Op 04438 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  CPLR 306-b and extending time.

A motion to vacate a default.

 Practice point:  The Appellate Division affirmed the motion court's denial, finding that defendant failed to demonstrate a potentially meritorious defense to the action. In support of his motion, defendant argued that the assignment of the mortgage to the plaintiff did not comply with the terms of the original lender's pooling service agreement. However, defendant did not have standing to assert noncompliance with the agreement. In addition, defendant failed to make a showing of a misrepresentation or that the plaintiff engaged in fraud or other misconduct that would warrant vacatur of the judgment of foreclosure and sale.

Student note:  A defendant seeking to vacate a default in answering or appearing upon the ground of excusable default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action, pursuant to CPLR 5015(A)(1).  In addition, CPLR 5015(a)(3) permits a court to vacate a judgment or order upon the ground of fraud, misrepresentation, or other misconduct of an adverse party.

Case:  Bank of Am. N.A. v. Patino, NY Slip Op 04440 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment on a promissory note.

A defamation claim and immunity.

Practice point:  Plaintiff-physician, who had treated a workers' compensation claimant, alleges that he was defamed in his profession by a report prepared by defendant, a consultant hired by the workers' compensation insurer to determine whether certain medications and treatment prescribed the claimant were indicated. Plaintiff alleges that defendant exceeded the scope of his assigned task by reporting that the medical records he reviewed indicated possible fraudulent billing and unnecessary treatment rendered, and recommending that the matter be referred to the Office of Professional Misconduct and the Attorney General's Office.

The Appellate Division modified the motion court's determination and reinstated the action sounding in libel per se. Defendant's communications are not cloaked with absolute immunity since there is no showing that he was engaged in a public function when he published the report, pursuant to Workers' Compensation Law § 20. In addition, there were no adversarial proceedings at the time of the report's publication.

Neither are defendant's communications subject to qualified immunity, as plaintiff's detailed allegations, accepted as true for purposes of the motion, are enough to establish actual malice.

Student note:  The Appellate Division affirmed dismissal of the claim sounding in intentional infliction of emotional distress, as defendant's report does go beyond all possible bounds of decency so as to be regarded as atrocious and intolerable in a civilized community.

Case:  Schottenstein v. Silverman, NY Slip Op 04416 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion to vacate a default.