Leave to amend an answer.

Practice point:  The Appellate Division modified the order denying defendant's summary motion to dismiss in this action to recover damages for medical malpractice and lack of informed consent, granting leave to amend the answer to include the affirmative defense of discharge in bankruptcy.  The defense is neither patently insufficient nor palpably devoid of merit, and there would be little or no prejudice resulting from any delay in granting leave to amend.

Student note: Even when a defense is waived under CPLR 3211(e), it can be interposed in an answer amended by leave of court pursuant to CPLR 3025(b), as long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay, and is not palpably insufficient or patently devoid of merit.

Case:   Dixon v. Chang, NY Slip Op 01797 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  An account stated.

Theories of liability and supplemental bills of particular in a medical malpractice action.

Practice point:  Defendants made a prima facie showing, via expert opinion, that they did not depart from good and accepted medical practice in allowing plaintiff-mother to continue her pregnancy to term and inducing delivery in the 41st week, and that there was no causal connection between any alleged departure and the plaintiff-infant's condition. However, in opposing defendants' summary judgment motion, plaintiffs raised triable issues of fact, and the Appellate Division affirmed denial of defendants' motion. Plaintiffs did not assert a new theory of liability in their opposition papers. Plaintiffs' expert asserted only that the departures from good and accepted medical practice may have occurred as far back as the mother's 37th week of pregnancy, when she started showing signs of gestational hypertension, and while she was already under defendants' care.

Student note:  Although the initial bill of particulars stated the dates of the alleged malpractice]incorrectly, the supplemental bill made clear that the allegations related to the treatment of the mother before delivery.  In addition, the expert disclosure also clarified the dates in issue.

Case:  Destiny H. v. Bronx Lebanon Hosp., NY Slip Op 02033 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Leave to amend an answer.

An attorney's charging lien.

Practice point:  The attorney fulfilled an obligation under the retainer agreement to obtain a judgment on the plaintiff's behalf, and the judgment included a specific award of attorneys' fees and expenses. The Supreme Court determined that those fees were reasonable based upon the amount of time the attorney spent on the case, and the Appellate Division found no basis to vacate the attorney's charging lien against the award of attorneys' fees and expenses specified in the judgment.

However, the Appellate Division found that the plaintiff submitted evidence in support of its contention that it thereafter discharged the attorney for cause, owing to his delay and recalcitrance in seeking enforcement of the judgment. The attorney failed to adduce evidence to raise a triable issue of fact to rebut the plaintiff's claim. Therefore, the Appellate Division determined that the Supreme Court should have granted that branch of the plaintiff's motion which was to vacate a charging lien pursuant to Judiciary Law § 475 for any sums recovered from the defendants in excess of the fees originally awarded.

Student note: A client has an absolute right, at any time, to terminate the attorney-client relationship by discharging the attorney, with or without cause. If an attorney's representation terminates on mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains the right to enforce the statutory lien. If the discharge is for cause, the attorney has no right to compensation, notwithstanding a specific retainer agreement. If there are conflicting claims as to whether an outgoing attorney was discharged with or without cause, there must be a hearing to resolve the dispute.

Case:  CPMI, Inc. v. Kolaj, NY Slip Op 01795 (2d Dep't 2016)

Here is the decision.

Monday's issue: Theories of liability and supplemental bills of particulars in a medical malpractice action.

A court's sua sponte dismissal of a claim.

Practice point:  The Appellate Division reversed and remitted, before a different judge, finding that the Supreme Court erred in, sua sponte, directing the dismissal of the plaintiff's complaint and discharge of the notice of pendency against the property at issue for lack of standing. The Appellate Division said that the Supreme Court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint and discharge of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing. In any event, lack of standing is not a jurisdictional defect and does not warrant a court's sua sponte dismissal of a complaint.

Student note:  A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances warrant dismissal.

Case:  Consumer Solutions, LLC v. Charles, NY Slip Op 01794 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  An attorney's charging lien.

Absolute privilege as to statements made in a judicial proceeding.

Practice point:  The Appellate Division affirmed the granting of the motion to dismiss the complaint which alleges that the defendant, who was counsel for the executor in a probate proceeding, made allegedly defamatory statements in an affirmation in support of a motion to compel a continued examination pursuant to Surrogate's Court Procedure Act § 1404. The statements concerned the very subject of the probate proceeding, namely, the contested last will. Therefore, the statements were absolutely privileged as a matter of law, and cannot be the basis for a defamation action.

Student note:  An absolute privilege is accorded statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court, provided that the statements are n some way pertinent to the issue in the proceeding . The pertinency standard is extremely liberal and extends to anything that may possibly or even plausibly be relevant.  The privilege attaches to all statements made in or out of court,  regardless of the motive for which they were made.

Case:  Brady v. Gaudelli, NY Slip 01793 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  A court's sua sponte dismissal of a claim.

A fall from a ladder and a Labor Law § 240(1) cause of action.

Practice point:  The Appellate Division affirmed that plaintiff made a prima facie showing of entitlement to summary judgment as to liability by submitting his own testimony that the ladder on which he was standing to perform his work wobbled, and that both he and the ladder fell to the ground as he descended it to figure out why it had wobbled.

Student note:  Plaintiff was not required to offer proof that the ladder was defective.

Case:  Ocana v. Quasar Realty Partners L.P., NY Slip Op 01902 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Absolute privilege as to statements made in a judicial proceeding.

Statute of frauds and quantum meruit.

Practice point:  The statute of frauds does not bar an oral agreement that is terminable at will and, therefore, could possibly be performed within one year.

Student note:  A quantum meruit claim will not be dismissed in the absence of a determination that there was an express contract governing plaintiff's compensation.

Case:  Naughton v. West Side Advisors, LLC, NY Slip Op 01900 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A fall from a ladder and a  Labor Law § 240(1) cause of action.

A cause of action for defamation.

Practice point:  The Appellate Division found that plaintiff, an attorney, could not prevail on his claim to recover damages for defamation, and granted the motion to set aside the jury verdict. The cause of action was based on allegations that the wife-defendant told her husband-defendant that plaintiff threatened her and their children, and that the defendants told third parties about the threat.

The Appellate Division stated that because the defendants are spouses, the communications between them do not constitute publication. Therefore, even if the wife's statement were a substantial factor in causing plaintiff to lose legal work, that statement is not actionable. In addition, plaintiff failed to prove that, as a result of defendants' statements, he suffered special harm, namely, the loss of something having economic or pecuniary value.

Student note:  Pursuant to CPLR 4401 or 4404, a motion for judgment as a matter of law may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the jury's conclusion, and no rational process by which the jury could find in favor of the nonmoving party.  In considering the motion, the court must afford the nonmovant every inference which may properly be drawn from the facts presented, and the facts themselves must be considered in a light most favorable to the nonmovant.

Case:  Gaccione v. Scarpinato, NY Slip Op 01640 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Statute of frauds and quantum meruit.

Motions to dismiss for failure to prosecute.

Practice point:  The Appellate Division reversed and denied the individual defendant's motion, finding that plaintiff's failure to file a note of issue within 90 days of the CPLR 3216 demand was the result of defendant's non-compliance with the notices to take its employee's deposition and for an inspection of its premises.

Student note:  The corporate defendant's cross motion to dismiss was denied, as it did not serve its own 90-day notice.

Case:  Walker v. Gibbons, NY Slip Op 01590 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A cause of action for defamation.

The doctrine of spoilation.

Practice point:  Under the common-law doctrine, a party may be sanctioned where it negligently loses or intentionally destroys key evidence.  The party seeking sanctions must demonstrate that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense.  The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence.  It may impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation.

Student note:   The Appellate Division will substitute its judgment for that of the Supreme Court only if that court's discretion was improvidently exercised.

Case:  Doviak v. Finkelstein & Partners, LLP, NY Slip Op 01636 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Motions to dismiss for failure to prosecute.

A claim of professional negligence and the "reasonable person" standard of liability.

Practice point:  In order to determine whether there is  liability, a jury must compare the defendant's conduct to that of a reasonable person under similar circumstances.  Where the case consists exclusively of facts whose significance could be readily understood by laypersons, the jurors are expected to apply their ordinary judgment and practical experience in order to determine what a reasonably prudent person would have done under the particular circumstances of the case, and whether the defendant deviated from that standard of care.

However, New York recognizes a subtle distinction between this general "reasonable person" standard and the standard to be applied when a defendant with special training or experience in a trade or profession acted in that capacity.  A person who undertakes to render services in the practice of a profession or trade will be held to the level of skill and care used by others in the community who practice the same profession or trade.  A claim of professional negligence requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury.

The degree of skill and care that must be exercised may be established through evidence of the general customs and practices of others who are in the same business or trade as that of the alleged tortfeasor.  This may be established by presenting the testimony of an expert who has demonstrated knowledge of the relevant standards of care in the trade or profession at issue.  Such expert testimony is admissible not only to explain highly technical medical or surgical questions, but also to clarify a wide range of issues calling for the application of accepted professional standards.

Student note:  In tort cases, a threshold question is whether the alleged tortfeasor owed a duty of care to the injured party, and the existence and scope of the duty is a question of law. 

Case:  Abrams v. Bute, NY Slip Op 01627 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  The doctrine of spoilation.