Testimony of a witness who was not identified prior to trial.

Practice point:  The Appellate Division determined that the trial court properly permitted the testimony of a witness whose identity was not disclosed prior to trial. The witness was called to lay the foundation for the admission of a nonparty witness's statement, and he was not the type of witness whose identity was required to be disclosed during discovery, pursuant to CPLR 3101.

Student note:  The witness's testimony was not hearsay.

Case:  Cruz v. City of New York, NY Slip Op 07910 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Interest in an action to recover on a promissory note.

Leave to amend the complaint.

Practice point:  The Appellate Division reversed the motion court and denied so much of plaintiff's motion as sought to amend the complaint to add a cause of action for wrongful death, finding that the proposed amendment was palpably insufficient.

The Appellate Division determined that the record shows that plaintiff's decedent suffered from numerous serious ailments prior to the alleged malpractice, and did not die until nearly two years after the alleged malpractice. There had been a number of other procedures performed by nondefendants, and plaintiff's decedent had been in the care of other nondefendants for those two years.  The conclusory assertion of causation, as stated in plaintiff's counsel's supporting affirmation, was insufficient to establish a causal connection between the decedent's death and the originally alleged malpractice by defendants.

Student note:  A motion seeking leave to amend a complaint to assert a cause of action for wrongful death must be supported by competent medical proof of the causal connection between the alleged malpractice and the original plaintiff's death.

Case:  Imperati v. Lee, NY Slip Op 07907 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Testimony of a witness who was not identified prior to trial.

Contractual indemnification.

Practice point:  The right to contractual indemnification depends upon the specific language of the contract.  A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances.

Student note:  A party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.

Case:  Bleich v. Metropolitan Mgt., LLC, NY Slip Op 07808 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to amend the complaint.

Contractual terms of duration.

Practice point:   A definite term of duration need not be relayed in express terms, and may be implied. In the absence of an express term fixing the contract's duration, a court supply the missing term, so long as a duration may be fairly and reasonably fixed by the surrounding circumstances and the parties' intent.

Student note:  Contracts containing no definite term of duration are terminable at will.

Case:  Bennett v. Atomic Prods. Corp., NY Slip Op 07806 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contractual indemnification.

Calculating interest.

Practice point:  The Appellate Division modified the jury award to plaintiff, vacating the award of interest and remanding for interest to be calculated at the rate of 3%, not 9%, from the date of the liability verdict.

The Appellate Division explained that, although the judgment is against the City, and not the New York City Transit Authority, which is not a party to the action, the Transit Authority is the real party in interest, as it is bound to indemnify the City pursuant to a lease, and will ultimately pay the judgment. Therefore, the interest rate set forth in Public Authorities Law § 1212(6) applies to the judgment. Even though the City did not object to the interest rate when the judgment was proposed for settlement, the 3% interest rate is mandated by statute, and the error should be corrected.

Student note:  Pursuant to Public Authorities Law § 1212(6), the rate of interest on the judgment may be no more than 3% per year.

Case:  Soltero v. City of New York, NY Slip Op 07739 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contractual terms of duration.

Dismissal with another action pending.

Practice point:  The Appellate Division affirmed dismissal of the complaint, pursuant to CPLR 3211(a)(4), as it is undisputed that there was a pending foreclosure action on the same mortgage commenced by plaintiff's predecessor-in-interest.

Student note:  Where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211(a)(4) on the ground that there is another action pending.  The critical element is that both suits arise out of the same subject matter or series of alleged wrongs.

Case:  Aurora Loan Servs., LLC v. Reid, NY Slip Op 07607 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Calculating interest.

Leave to renew and reargue.

Practice point:  Respondent moved to dismiss the appeal on the ground that there is no appeal from an order denying reargument. Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the submission of the appeal, the Appellate Division granted the motion to dismiss the appeal, and the appeal was dismissed.  The Appellate Division found that, while the appeal was of a motion denominated as one for leave to renew and reargue, it was, in actuality, only for leave to reargue, the denial of which is not appealable, pursuant to CPLR 2221[d][2] and [e][2].

Student note:  Regardless of how it was denominated, appellant's motion, was not for leave to renew and reargue, as it did not offer any new facts that had not been offered on her prior motion for summary judgment dismissing the complaint insofar as against her.

Case:  Arch Bay Holdings, LLC-Series 2010C v. Daisy, NY Slip Op 07606 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Dismissal with another action pending.

A contractual forum selection clause contained in a cruise passenger ticket.

Practice point:  In this action to recover damages for personal injuries, defendant appealed the denial of its CPLR 3211 motion.  The Appellate Division reversed the motion court, and dismissed the complaint.

The injured plaintiff allegedly fell while in a defendant-owned boat that was returning her to the cruise ship. Defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(1), (2), and (8), arguing that the court lacked personal and subject matter jurisdiction based on the forum selection and one-year time limitation clauses in the contract of carriage which was printed on plaintiff's ticket.

 The Appellate Division found that defendant's submissions established that the contract of carriage included a clause requiring that any disputes between the parties "shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country."  In addition, the contract provided that an action to recover damages for personal injuries "shall not be maintainable unless filed within one year after the date of the injury." Defendant also established that plaintiff had a reasonable opportunity to review the ticket, and there is no allegation of fraud or overreaching.

Student note:  A contractual forum selection clause contained in a cruise passenger ticket is generally enforceable, as long as it has been reasonably communicated to the passenger and does not violate notions of fundamental fairness. The submission thereof constitutes documentary evidence that may provide a proper basis for dismissal of an action pursuant to CPLR 3211(a)(1).

Case:  Fritsche v Carnival Corp., NY Slip Op 07618 (2d Dept. 2105)

Here is the decision.

Tomorrow's issue:  Leave to renew and reargue.

Summary judgment in an auto accident action.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion for summary judgment as to liability.  As there can be more than one proximate cause of an accident, a plaintiff has the burden of establishing, as a matter of law, that he or she is free from comparative negligence. Here, in support of its motion, plaintiff submitted a transcript of defendant's deposition testimony which failed to establish that defendant's alleged statutory violation was the sole proximate cause of the accident and that plaintiff's conduct did not contribute to the happening of the accident.

Student note:  In light of plaintiff's failure to meet its prima facie burden, the Appellate Division did not consider the sufficiency of the opposing papers.

Case:  Frey v. Richmond Hill Lumber & Supply, NY Slip 07617 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A contractual forum selection clause contained in a cruise passenger ticket.

An allegation of retaliation in violation of Executive Law § 296(1).

Practice point:   Plaintiff is an Asian-American woman who served as defendant's comptroller. She alleges that defendant terminated her employment in retaliation because she cooperated and provided testimony to a grand jury regarding alleged criminal activity of a city councilperson, and that defendant subsequently hired a less qualified, white male to fill her former position.  Defendant moved pursuant to CPLR 3211(a) to dismiss the complaint, the Supreme Court denied the motion, and the Appellate Division reversed.

The Appellate Division held that the complaint fails to state a cause of action alleging retaliation in violation of Executive Law § 296(1)(e), which makes it unlawful to retaliate against an employee because he or she opposed statutorily forbidden discriminatory practices.  To make a prima facie showing of retaliation under the statute, a claimant must show that (1) the claimant was engaged in protected activity; (2) the claimant's employer was aware that he or she participated in such activity; (3) the claimant suffered an adverse employment action based upon his or her activity; and (4) there was a causal connection between the protected activity and the adverse action.  An employee engages in a protected activity by opposing or complaining about unlawful discrimination.  Here, plaintiff's grand jury testimony was unrelated to opposing or complaining about statutorily prohibited discrimination, and, therefore, was not protected activity within the meaning of the statute.

Student note:  In considering a CPLR 3211(a)(7) motion to dismiss the complaint for failure to state a cause of action, the court must accept the plaintiff's allegations as true; afford the plaintiff the benefit of every possible favorable inference; and determine only whether the facts as alleged fit within any cognizable legal theory.

Case:  Clarson v. City of Long Beach, NY Slip Op 07614 (2d Dept. 2015

Here is the decision.

Tomorrow's issue:  Summary judgment in an auto accident action.

Discovery and medical records in a personal injury action.

Practice point:  The Appellate Division modified the motion court's order denying defendants' motion to compel plaintiff to provide an unrestricted authorization for production of his entire employment file.  The Appellate Division granted the motion to the extent of requiring plaintiff to provide an authorization for any medical records related to the claimed injuries, from one year prior to the accident at issue to the present, and otherwise affirmed.

The Appellate Division explained that, as plaintiff failed to proffer any reason for not complying with the preliminary conference order directing him to provide a written authorization for release of the medical records, defendants' motion should be granted to the extent indicated.  However, the Appellate Division found that the motion court providently exercised its discretion in determining that discovery of other documents that may be contained in plaintiff's employment file, including disciplinary records, is not material and necessary to the defense of the action.

Student note:  By bringing this action to recover for personal injuries allegedly suffered in a motor vehicle accident, plaintiff placed his medical condition in controversy and waived the physician-patient privilege with respect to pertinent medical records.

Case:  Almonte v. Mancuso, NY Slip Op 07593 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  An allegation of retaliation in violation of Executive Law § 296(1).