Hearsay, admissibility, and hospital reords.

Practice point:  A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule if the entry is germane to the diagnosis or treatment of the patient.

Student note:  If the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is evidence connecting the party to the entry.

Case:  Berkovits v. Chaaya, NY Slip Op 03131 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Labor Law and accidents outside New York State.

Extending time and law office failure.

Practice point:  To extend the time to answer the complaint and to compel the plaintiff to accept an otherwise untimely answer, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action.  The Appellate Division determined that the Supreme Court providently exercised its discretion in rejecting the defendant's unsubstantiated explanation that lawyers he consulted, but apparently did not retain, had advised him not to answer the complaint. A defendant's claim that his attorney apparently made an erroneous assumption regarding the need to answer the complaint does not constitute a valid excuse. At most, the advice, and the defendant's decision to follow it, is a misguided strategy, not law office failure.

Student note:  While a court has the discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005), a conclusory, undetailed, and uncorroborated claim of law office failure is insufficient.

Case:  Bank of N.Y. Mellon v. Colucci, NY Slip Op 03129 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Hearsay, hospital records, and admissibility..

The termination of a forum selection clause.

Practice point:  The mere termination of a contract containing the clause does not mean that the clause is without effect .In order for a party to disregard it when the contract is terminated, there must be a clear manifestation of the parties' intent to terminate the clause along with the contract. The best evidence of what the parties intended is the plain meaning of the contract.

Student note:  Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes, particularly those involving international business agreements.

Case:  Garthon Bus. Inc. v. Stein, NY Slip Op 03102 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Extending time and law office failure.

Primary assumption of the risk.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion in this action where plaintiff seeks damages for personal injuries sustained while driving a go-kart at a track owned and operated by defendant. The Appellate Division found that the Supreme Court improvidently exercised its discretion in declining to consider the affidavit of plaintiff's expert on the ground that the expert was not disclosed until after the note of issue was filed, as there was no evidence that plaintiff's delay in retaining the expert or in serving the expert information was intentional, willful, or prejudicial to defendant, pursuant to CPLR 3101[d][1][i]. Nevertheless, the affidavit failed to raise a triable issue of fact. While the expert alleged that the go-kart did not comply with safety guidelines promulgated by the American Society for Testing and Materials, those guidelines are nonmandatory, and insufficient to raise a triable issue of fact as to whether defendant was negligent.

Student note:  Defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that, under the doctrine of primary assumption of the risk, plaintiff assumed the risks inherent in driving a go-kart, including the risk of sustaining injuries in the manner in which plaintiff did in this case.  In opposition, plaintiff failed to raise a triable issue of fact as to whether defendant unreasonably increased the risk of injury above and beyond the usual dangers inherent in the sport.

Case: Augustin v. Grand Prix N.Y. Racing, LLC, NY Slip Op 02948 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  The termination of a forum selection clause.

A bus operator's duty of care.

Practice point:  A common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area.

Student note:  A common carrier is subject to the same duty of care as any other potential tortfeasor, namely, reasonable care under all of the circumstances of the particular case.

Case:  Amin v. County of Suffolk, NY Slip Op 02947 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Primary assumption of the risk.

The common interest privilege.

Practice point:  Under this doctrine, a third party may be present at the communication between an attorney and a client without destroying the privilege if the communication is for the purpose of furthering a nearly identical legal interest shared by the client and the third party.

Student note:  The common interest privilege serves as an exception to the general rule that the presence of a third party at a communication between counsel and client will waive a claim that a communication is confidential.

Case:  Levy v. Arbor Commercial Funding, LLC, NY Slip Op 03063 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A bus operator's duty of care.

Derivative suits and the futility of making a demand of the board.

Practice point:  Business Corporation Law § 626(c) provides that in a shareholders' derivative suit, "the complaint shall set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board or the reasons for not making such effort."  To overcome a motion to dismiss for failure to plead demand futility, a plaintiff must have alleged with particularity that (1) a majority of the directors are interested in the transaction, or (2) the directors failed to inform themselves to a degree reasonably necessary about the transaction, or (3) the directors failed to exercise their business judgement in approving the transaction.

Student note:  The Appellate Division did not consider plaintiff's argument because it was made for the first time on appeal, and it contradicted the allegations in his complaint.

Case:  Goldstein v. Bass, NY Slip Op 03060 (1st Dep't 2016)

Here is the deision.

Tomorrow's issue:  The common interest privilege.

An assault on Transit Authority property.

Practice point:  The Appellate Division affirmed the granting of defendant's motion for summary judgment in this action to recover damages for personal injuries. The defendant-Transit Authority demonstrated that it had no special relationship with the plaintiff, thereby establishing its prima facie entitlement to judgment as a matter of law, and, in opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's claims that a Transit employee observed another passenger injuring her on Transit property and failed to summon emergency assistance in a timely manner from a position of safety is based on speculation and conjecture, and thus, is insufficient to defeat the motion.

Student note:  Generally, the Transit Authority owes no duty to protect a person on its premises from assault by a third person, absent facts establishing a special relationship between the agency and the person assaulted. A "special relationship" requires justifiable reliance by a plaintiff upon an affirmative undertaking by the municipal defendant to act on the plaintiff's behalf.  However, a Transit employee's unreasonable failure to summon aid upon observing an injury being inflicted from a vantage point offering both safety and the means to summon help without danger may fall within the narrow range of circumstances which could be actionable.

Case:  Jacobs v. Transit Authority, NY Slip Op 02776 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Derivative suits and the futility of making a demand of the board.

The granting of attorneys' fees pursuant to Lien Law.

Practice point:  The Appellate Division found that attorneys' fees were improperly granted pursuant to Lien Law §§ 39 and 39-a, since this was not an action or proceeding to enforce the lien, and the lien had been discharged without a finding of willful exaggeration.  The Appellate Division noted that the statute is penal in nature, and must be strictly construed in favor of the person upon whom the penalty is sought to be imposed.

Student note:  Although respondents failed to raise this issue in opposition to the petition, the Appellate Division reached it because it presents a legal issue that appears on the face of the record and could not have been avoided if raised at the proper juncture.

Case:  Harrington v. Smith, NY Slip Op 02934 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  An assault on Transit Authority property.

Alleging injuries caused by the negligence of a state employee.

Practice point:  Pursuant to the Court of Claims Act § 10(3), a claim to recover damages for personal injuries caused by a state employee's negligence must be filed within 90 days after the claim accrues, unless the claimant within such time serves a written notice of intention to file a claim, in which event the claim shall be filed within two years after accrual.  The statute requires a claim to specify, among other things, the time when the claim arose and the place where it arose.  A notice of intention to file a claim must also include a statement as to when and where the claim arose.

Student note:  The statutory requirements  are set forth in sections §§ 10(3) and 11(b), and must be strictly construed. Noncompliance is a jurisdictional defect compelling dismissal.

Case:  Hargrove v. State of New York, NY Slip Op 02774 (2d Dep't 2016)

Here is the decision.

Monday's issue:  The granting of attorneys' fees pursuant to Lien Law.

A livery cab, an accident, and summary judgment.

Practice point:  The Appellate Division affirmed the denial of defendant's summary judgment motion dismissing the complaint in this action where plaintiff injured her ankle when, while riding as a passenger in the back seat of defendant's livery cab, she claims the vehicle came to an abrupt stop. At deposition, plaintiff admitted that she could not provide an account of the sequence of events culminating in the accident because she was not paying attention. Defendant moved for summary judgment, relying on the emergency doctrine, claiming that another car unexpectedly cut in front of him, which required him to immediately apply his brakes to avoid a collision. The Appellate Division agreed with the motion court that, notwithstanding defendant's present account of the accident, there are issues of fact regarding whether the stop was necessitated by an emergency that was not of defendant's own making.

Student note:  The emergency doctrine will prevent a finding of negligence against a driver confronted by a sudden and unexpected situation that leaves little time for thought, deliberation or consideration, provided that the driver's actions were reasonably prudent under emergent circumstances, and the driver did not create or contribute to the emergency. The existence of an emergency and reasonableness of a party's response to the situation ordinarily present questions of fact.

Case:  Weston v. Castro, NY Slip Op 02902 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Alleging injuries caused by the negligence of a state employee.