Expert testimony in a medical malpractice action.

To satisfy the Frye standard, the testimony must be based on a scientific principle or procedure which is sufficiently established to have gained general acceptance. A plaintiff fails to carry this burden if it does not present supporting material such as clinical data and peer reviewed medical literature. Here, the material presented by plaintiff's proposed experts discussed the presence of involuntary fasciculations in patients who experienced hyponatremia, but who also demonstrated indicia of brain damage. Plaintiff, however, did not have brain damage, and so the material did not support plaintiff's theory of liability.

Knafo v. Mount Sanai Hosp., NY Slip Op 03462 (1st Dep't June 18, 2020)

Here is the decisi

Appellate practice.

The general rule is that an evidentiary ruling made before trial is reviewable only in connection with an appeal from the judgment rendered after trial. There is an exception if the evidence is so central to the proponent's case that its exclusion is the functional equivalent of summary judgment. Here, without the proposed evidence purporting to establish a causal link between defendant's alleged departure from accepted practice and plaintiff's permanent condition, the malpractice claim fails. The order is appealable because it limits the scope of issues for trial.

Knafo v. Mount Sinai Hosp., NY Slip Op 03462 (1st Dep't June 18, 2020)

Here is the decision.

An untimely motion to change venue.

The court providently exercised its discretion in denying the motion as untimely. Defendant was aware of the venue selection clause in its own admission agreement and the agreement, which was signed by plaintiff's decedent, was in its possession at all times. Still, defendant waited almost two years after the action was commenced before seeking a change of venue, and provided no reasonable explanation for the delay.

Brown v. United Odd Fellow & Rebekah Home, Inc., NY Slip Op 03461 (1st Dep't June 18, 2020)

Here is the decision.

CPLR 3025[b].

In the absence of sufficient evidence to establish that the proposed amendment was not specious, defendant's motion for leave to amend its answer was providently denied.

Avail 1 LLC v. Acquafredda Enters., LLC, NY Slip Op 03460 (1st Dep't June 18, 2020)

Here is the decision.

A claim for negligent hiring, supervision, and retention.

An essential element of the cause of action is that the employer knew, or should have known, of the employee's propensity for the sort of conduct that caused the injury. Here, defendant's knowledge of the employee's criminal history does not raise an issue of fact as to whether the defendant knew or should have known of her propensity to commit sexual assault. Similarly, the fact that one of defendant's supervisors confronted the employee concerning her "nodding out" and missing work did not impute to defendant actual or constructive notice that the employee had any propensity to commit sexual assault. The claim was dismissed.

Norris v. Innovative Health Sys., Inc., NY Slip Op 03456 (1st Dep't June 18, 2020)

Here is the decision.

A demand to change venue.

By failing to respond to the defendant's demand to change venue to a proper forum, the plaintiff forfeits its right to select venue.

Richardson v. City of New York, NY Slip Op 03281 (1st Dep't June 11, 2020)

Here is the decision.

An asbestos-related claim.

Oa the motion for summary judgment, defendant has the initial burden of showing unequivocally that its product could not have contributed to the causation of decedent's injury. Here, defendant only pointed to gaps in plaintiffs' proof, which is insufficient to meet its burden. Even if the burden had shifted, plaintiff raised an issue of fact, citing hearsay evidence that could be considered by the court since it was not the sole basis of the opposition.

Fischer v. American Biltrite, Inc., NY Slip Op 03277 (1st Dep't June 11, 2020)

Here is the decision.

A summary judgment motion and part rules.

Supreme Court improvidently exercised its discretion in denying the City's motion for summary judgment as untimely on the ground that, in violation of the court's part rules. it was made more than 60 days after the note of issue was filed. When the note of issue was filed, and for more than 60 days thereafter, the case was assigned to a different part, and the City showed that it had complied with the rules of the part to which the case had originally been assigned.

Astrakan v. City of New York, NY Slip Op 03276 (1st Dep't June 11. 2020)

Here is the decision.

Charging liens.

Entry of an order recognizing the lien bars any challenge to the rendering of the underlying legal services. Here, though, the stipulated order also expressly provides that the substitute counsel does not waive "any claims or defenses w[ith] respect to fees or expenses," and that there will be a hearing "regarding all fee and expense issues." Therefore, a hearing is necessary to determine whether the former attorney was discharged for cause.

Matter of Verdugo v. Schwartz Goldstone & Campisi, LLP, NY Slip Op 03273 (1st Dep't June 11, 2020)

Here is the decision.

A motion for class certification.

Pursuant to CPLR article 9, the trial court has considerable flexibility in overseeing a class action, and the court may decertify the class at any time before a decision on the merits if it becomes apparent that class treatment is inappropriate.  Still, the proponent of class certification bears the burden of establishing the criteria promulgated by CPLR 901(a), and must do so by the tender of evidence in admissible form.

Mid Is. LP v. Hess Corp., NY Slip Op 03270 (1st Dep't June 11, 2020)

Here is the decision.

Appellate practice.

An order issued sua sponte is not appealable as of right, pursuant to CPLR 5701[a][2]. Plaintiffs' remedy is to move to vacate the court's order, and, if the motion is denied, appeal from the order, pursuant to CPLR 5701[a][3].

Hall v. Louis, NY Slip Op 03268 (1st Dep't June 11, 2020)

Here is the decision.