Medical malpractice and the continuous treatment doctrine.

The Appellate Division affirmed dismissal as against defendant Health and Hospitals Corporation in this action where plaintiff alleges that defendants were negligent in failing to timely diagnose a cancerous wound. The motion court granted HHC's motion to dismiss the claims based on plaintiff's own conduct and his failure to file a timely notice of claim, in violation of General Municipal Law § 50-e(1)(a).

Plaintiff was discharged from an HHC hospital in November 2010 and did not return to an HHC hospital for treatment until May 2012, when he received the cancer diagnosis. The notice of claim was filed shortly after plaintiff's discharge from the hospital in October 2012, more than 90 days after the claim's accrual in November 2010.

Practice point:  The Appellate Division rejected plaintiff's contention that both the November 2010 and May 2012 visits were part of a continuous course of treatment, tolling the period for filing a notice of claim, pursuant to CPLR 214-a   It is clear that, at the time of plaintiff's 2010 discharge,  HHC anticipated that it would provide further treatment.  However, it also is clear that plaintiff did not anticipate any further treatment by HHC. as, in the interim period, he began treatment by a co-defendant acupuncturist who plaintiff thought was a licensed physician.  Plaintiff's actions indicated an intention to discontinue his relationship with HHC, and, therefore, his return visit must be deemed a renewal, rather than a continuation, of the physician-patient relationship.

Case:  Jianfeng Jiang v. Xue Chao Wei, NY Slip Op 04896 (1st Dep't June 15, 2017)

Here is the decision.

Tomorrow's issue:  Spoilation of evidence.

Standing to sue a bank for the return of a check.

The Appellate Division affirmed dismissal of this action where plaintiff asserts that he and a friend went together to his friend's bank, because he wanted to cash a check, and, due to his immigration status, he had no identification. The two signed their names in front of the teller, before sliding the check under the teller window, with a deposit slip that instructed to clear the funds into the friend's account. The bank rejected the deposit, closed the friend's account, and did not issue a replacement check until several months later.

Practice point:  When plaintiff endorsed and delivered the check to his friend, the friend became the holder of the check, pursuant to NY UCC 3-202[1]. Thus, only the friend was entitled to negotiate the check or to enforce payment in his own name, pursuant to NY UCC 3-301[1]. Plaintiff's argument that he, as payee of the check, is entitled to enforce its return or payment is unavailing. Plaintiff lacks standing to sue the bank for the return or proceeds of the check, because he is no longer the holder of the check.

Case:  Delight Bvunzawabaya v. JP Morgan Chase & Co., NY Slip Op 04891 (1st Dep't June 15, 2017)

Here is the decision.

Tomorrow's issue:  Medical malpractice and the continuous treatment doctrine.

CPLR 205(a).

CPLR § 205. Termination of action. (a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

Practice point:  An out-of-state action is not a "prior action" within the meaning of the statute.

Case in point:  Deadco Petroleum v. Trafigura AG, NY Slip Op 04887 (1st Dep't June 15, 2017)

Here is the decision.

Tomorrow's issue:  Standing to sue a bank for the return of a check.

A non-resident's consent to jurisdiction.

The Appellate Division reversed the motion court and dismissed the complaint in this action where the plaintiff alleges that he brokered a deal for the purchase of a company, and that the defendants agreed that, on entering into a purchase agreement, they would pay him a commission, but did not. The defendants moved  to dismiss pursuant to CPLR 3211(a)..

Practice point:   A non-resident's consent to jurisdiction for issues arising out of the purchase agreement does not constitute a consent with respect to plaintiff's claims for a commission.

Case in point:  Ausch v. Sutton, NY Slip Op 04813 (2d Dep't June 14, 2017)

Here is the decision.

Tomorrow's issue:  CPLR 205(a).

Failure to state a claim as an affirmative defense.

Practice point:  The Appellate Division stated the the motion court was not free to dismiss the affirmative defense of failure to state a claim, as failure to state a claim may be raised at any time, even if not pleaded, pursuant to CPLR 3211[e], and, therefore, is mere surplusage as an affirmative defense.

Case:  San-Dar Assoc. v. Fried, NY Slip Op 04884 (1st Dep't June 15, 2017)

Here is the decision.

Monday's issue:  A non-resident's consent to jurisdiction.

Hearsay on a summary judgment motion.

Practice point:  While hearsay may be considered in opposition to a motion for summary judgment, it is insufficient to raise a triable issue of fact where it is the only evidence upon which the opposition to the motion is predicated.

Case:  Alpha Invs., LLC v. McGoldrick, NY Slip Op 04812 (2d Dep't June 14, 2017)

Here is the decision.

Tomorrow's issue:  Failure to state a claim as an affirmative defense.

Law of the case and sua sponte dismissal.

The Appellate Division reversed, and reinstated the complaint in this action where plaintiff, as administrator of the estate commenced a medical malpractice suit against, among others, defendant-physician. Defendant's motion for summary judgment was denied. The action was assigned to a different judge, and set for trial.  After jury selection, the complaint was dismissed insofar as asserted against other defendants, and, in light of the dismissal as to those defendants, the Supreme Court declared a mistrial, with jury selection to begin anew. After a second jury was selected, the court, sua sponte, directed a hearing, denominated as a Frye hearingat which the plaintiff's medical expert, was to testify in order to determine whether his opinion rendered in this case as to defendant was sufficiently reliable. Following the hearing, the court directed dismissal of the complaint insofar as asserted against defendant.

Practice point:  A Frye hearing is meant to determine whether an expert's opinion is based on principles that are sufficiently established to have gained general acceptance as reliable. Here, though, based on the court's questions and statements, the Appellate Division determined that the hearing's purpose was to revisit the determination made in the order denying defendant's motion for summary judgment insofar as asserted against her. In doing so, the court violated the doctrine of law of the case by disregarding the prior order, issued by a justice of coordinate jurisdiction, concluded that there were triable issues of fact as to whether defendant departed from accepted medical standards of care and whether such departures were a proximate cause of the decedent's injuries.

In addition, a court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal. Here, there were no extraordinary circumstances warranting the sua sponte dismissal of the complaint insofar as asserted against defendant.

Case in point:  Aguilar v. Feygin, NY Slip 04811 (2d Dep't June 14, 2017)

Here is the deision.

Tomorrow's issue:  Hearsay on a summary judgment motion.

Respondeat superior.

The Appellate Division reversed the motion and dismissed the complaint as against the employer-defendant, in this action where plaintiff was severely injured when, while standing on the sidewalk, a taxicab hopped the curb and struck her. Just before the accident, the taxi driver had an altercation with a bike messenger, who allegedly banged his hands and fists against the taxi.  Allegedly, the taxi driver then steered his vehicle into the messenger, striking plaintiff in the process. Plaintiff alleges that the messenger's employer is vicariously liable for the messenger, who incited the altercation.

While the determination of whether an employee's act is within the scope of his employment is heavily dependent on factual considerations, the complaint failed to state a cause of action the employer on the theory of respondeat superior. Accepting the allegation that the messenger was an employee at the time of the accident, his alleged conduct cannot be reasonably viewed as falling within the scope of his employment. Although the precipitating dispute might have arisen while the messenger was acting in the course of his employment in making deliveries, his alleged inciting of an altercation or provoking the taxicab driver's assault cannot reasonably be construed as part of his duties as a bike messenger, or as acting in furtherance of his employer's interests. The complaint does not allege that the employer condoned, instigated or authorized the messenger's actions.

Case:  Green v. Himon, NY Slip Op 04777 (1st Dep't June 13, 2017)

Here is the decision.

Tomorrow's issue:  Law of the case and sua sponte dismissal.

Applicability of the Workers' Compenstion Law.

Practice point:  Primary jurisdiction as to the applicability of the statute is vested in the Workers' Compensation Board., and where the availability of workers' compensation hinges on the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum to resolve the questions. Plaintiff has no choice but to litigate this issue before the Board, and the question of whether a person is an employee within the meaning of the statute is for the Board to determine in the first instance. The Board's findings are final and conclusive unless reversed on direct appeal, and are not subject to collateral attack in a plenary action. This is so even where, as here, the employer has filed a claim on the employee's behalf and the employee did not apply for or accept benefits.  Whether the employee or the employer first brings the injury to the Board's attention, the Board's finding that the injury is compensable is, until set aside, a final and conclusive determination which bars an action at law.

Case:  Aprile-Sci v. St. Raymond of Penyafort R.C. Church, NY Slip Op 04412 (2d Dep't June 7, 2017)

Here is the decision.

Monday's issue:  Respondeat superior.

A Labor Law § 241(6) claim.

Practice point:  The motion court properly exercised its discretion in granting plaintiffs' motion for leave to amend their bill of particulars, to allege violations of Industrial Code §§ 23-1.7(b)(1) and 23-4.2(h) in support of the Labor Law § 241(6) claim, since an amendment to allege a specific section of the Industrial Code is appropriately permitted, in the absence of unfair surprise or prejudice, even after a note of issue has been filed.

Labor Law § 241(6) imposes on owners a nondelegable duty to comply with specific safety regulations. Industrial Code § 23-1.7(b)(1) requires that "hazardous opening[s] into which a person may step or fall" must "be guarded by a substantial cover . . . or by a safety railing." Industrial Code § 23-4.2(h) requires that "[a]ny open excavation adjacent to a . . . street, . . . or other area lawfully frequented by any person shall be effectively guarded."

Case in point:  Gjeka v. Iron Horse Transp., Inc., NY Slip Op 04536 (1st Dep't June 8, 2017)

Here is the decision.

Monday's issue:  Applicability of the Workers' Compensation Law.

An insufficient claim for an accounting.

Practice point:  In the absence of an allegation that plaintiffs demanded an accounting, the claim fails to state a cause of action.

Case in point:  New York Studios, Inc. v. Steiner Digital Studios, NY Slip Op 04397 (1st Dep't June 6, 2017)

Here is the decision. 

Tomorrow's issue: A Labor Law § 241(6) claim.