Expert witness testimony in a medical malpractice action.

Practice point:  The Appellate Division rejected as without merit defendant's contention that plaintiff's expert was unqualified to give an expert opinion on the standard of care of a general surgeon and an anesthesiologist merely because the expert was a cardiologist. An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable.  Once a medical expert establishes knowledge of the relevant standards of care, the witness need not be a specialist in the particular area at issue to offer an opinion. Any lack of skill or expertise goes to the weight of the opinion as evidence, not its admissibility.

Student note:  In order to establish liability for medical malpractice, a plaintiff must prove that the defendant deviated or departed from accepted community standards of practice and that such departure was a proximate cause of the plaintiff's injuries.  On a motion for summary judgment, a defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In opposition, a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact.

Case:  Leavy v. Merriam, NY Slip Op 08148 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in a slip-and-fall action.

Operating a vehicle with the right-of-way.

Practice point:  An operator of a motor vehicle traveling with the right-of-way has an obligation to keep a proper lookout and to see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles.

Student note:  As there can be more than one proximate cause of an accident, a plaintiff moving for summary judgment on the issue of liability has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault.  Generally, the issue of comparative fault is a jury question.

Case:  Jones v. Pinto, NY Slip Op 08147 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Expert witness testimony in a medical malpractice action.

Evidence of habit in a negligence case.

Practice point:  In a negligence case, a  party may introduce evidence of a habit or routine practice in order to allow the inference of its persistence, and, therefore, negligence on a particular occasion. However, to justify introduction of evidence as to habit or regular usage, there must be a showing that the party expects to prove a sufficient number of instances of the conduct in question.

Student note:  Here, the earliest proffered instance of the purported habit occurred more than two months after the date on which the appellant was injured, and was observed on only seven occasions over the next six weeks. The court, in its discretion, properly precluded the proffered evidence.

Case:  Gucciardi v. New Chopsticks House, Inc., NY Slip Op 08146 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Operating a vehicle with the right-of-way.

An injury resuting from an elevation-related risk.

Practice point:  The Appellate Division affirmed the granting of that branch of defendant's motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). Defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff's injury was not caused by the elevation-related hazards encompassed by the statute. In opposition, plaintiff failed to raise a triable issue of fact as to whether his injury arose from an elevation-related risk contemplated by the statute, rather than from the usual and ordinary dangers of the construction site. The fact that plaintiff was injured while lifting a heavy object does not give rise to liability within the meaning of the statute.

Student note:  The extraordinary protections of § 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity.  The statute was designed to prevent accidents in which a protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.

Case:  Cardenas v. BBM Constr. Corp., NY Slip Op 08142 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Evidence of habit in a negligence case.

A motion to vacate a self-executing preclusion order.

Practice point:  The Appellate Division affirmed the denial of plaintiff's cross motion to vacate the self-executing preclusion order, as plaintiff failed to provide a reasonable excuse for his failure to appear at defendant's five separately scheduled medical examinations, two of which occurred after the issuance of the preclusion order.  Plaintiff's claimed lack of knowledge of the scheduled medical examinations is unreasonable, especially since he failed to indicate any efforts he made to stay in contact with his counsel, despite the fact that there were two court orders directing that he appear for his medical examination. Plaintiff does not deny that he was aware of those orders. His counsel also failed to confirm his assertions that he had no contact with his counsel, or that they mailed medical examination notices to plaintiff's mother's address.

Plaintiff also failed to show that his was a meritorious claim.  He failed to submit an affidavit of merit, and the only evidence he submitted as proof of defendant's liability was a police accident report containing his hearsay statement as to how the accident happened. This is insufficient to demonstrate a meritorious cause of action.

Student note:  The preclusion of any testimony as to plaintiff's medical condition rendered him unable to establish a prima facie case.

Case:  Arzuaga v. Tejada, NY Slip Op 08108 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  An injury resulting from an elevation-related risk.

Vicarious liability in a personal injury claim against a bouncer.

Practice point: When security guards or bounders are hired to maintain order, they may be acting within the scope of their employment when they use physical force on the businesses' patrons.

Student note:  An employer may be vicariously liable for its employees' negligence or intentional tortious conduct, as long as the employee's acts were committed in furtherance of the employer's business.

Case:  Fauntleroy v. EMM Group Holdings LLC, NY Slip Op 08106 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion to vacate a self-executing preclusion order.

A motion for leave to reargue.

Practice point:  No appeal lies from the denial of a motion for leave to reargue.

Student note:  The right of direct appeal of an intermediate order terminates with the entry of judgment in the action.

Case:  Green v. Canada Dry Bottling, NY Slip Op 07949 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Vicarious liability in a personal injury claim against a bouncer.

Additional discovery after filing a note of issue.

Practice point:  The Appellate Division reversed, and denied that branch of the defendant's renewed motion which was to compel the plaintiff to submit to an independent medical examination.

The Appellate Division held that the defendant waived her right to conduct an independent medical examination of the plaintiff by failing to designate a physician to conduct such examination within the time period set forth in the relevant compliance conference order, and by her failure to move to vacate the note of issue within 20 days after service of the note of issue and certificate of readiness, pursuant to 22 NYCRR 202.21[e].

Student note:  The Supreme Court may, in its discretion, permit additional discovery after the filing of a note of issue and certificate of readiness where the movant demonstrates that unusual or unanticipated circumstances developed subsequent to the filing, requiring additional pretrial proceedings to prevent substantial prejudice, pursuant to 22 NYCRR 202.21[d].

Case:  Gianacopoulos v. Corona, NY Slip Op 07948 (2d Dept. 2015)

Here is the decision.

Monday's issue:  A motion for leave to reargue.

Comparative negligence and the seat-belt defense in an auto accident action.

Practice point:  Regardless of an issue of comparative negligence as between the driver of the vehicle in which plaintiff was a passenger and the driver of the other vehicle, plaintiff may seek partial summary judgment against the other vehicle's driver.

Student note:  The assertion of a seat-belt defense goes to the determination of damages, as a potentially mitigating factor, and not to liability.

Case:  Davis v. Turner, NY Slip Op 07922 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Additional discovery after filing a note of issue.

Court holiday.

Interest in an action to recover on a promissory note.

Practice point:  If the note does not contain an interest provision but is payable on demand, then interest accrues from the date of the demand, at the statutory rate for a judgment.  Here, the only record evidence as to a demand for payment by plaintiff under the note is a demand letter dated July 24, 2009, and so that is the date from which the prejudgment interest should be calculated.

Student note:  In an action on a promissory note, CPLR 5001 permits a creditor to recover prejudgment interest from the date on which each payment of principal or interest became due under the terms of the note until the date on which liability is established.

Case:  Gliklad v. Cherney, NY Slip Op 07919 (1st Dept. 2015)

Here is the decision.

Thursday's issue:  Comparative negligence and the seat-belt defense in an auto accident action.