The continuous treatment doctrine.

Where the medical malpractice claim is predicated on an alleged failure to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition. However, routine" or diagnostic examinations, even when conducted repeatedly and over a period of time, do not constitute a course of treatment for the purpose of tolling the statute of limitations.

Vines v. New York City Health & Hosps. Corp., NY Slip Op 04096 (1st Dep't June 23, 2021)

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A cause of action for breach of fiduciary duty.

In order to state the claim, the plaintiff must allege that (1) the defendant owed him a fiduciary duty; (2) the defendant committed misconduct; and (3) the plaintiff suffered damages caused by that misconduct.

Besen v. Farhadian, NY Slip Op 04080 (1st Dep't June 24, 2021)

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CPLR 301.

Plaintiff failed to show that Defendant is domiciled in New York so as to confer general personal jurisdiction. Defendant is headquartered and has its principal place of business in Dubai, UAE, and it operates flights internationally serving 156 airports in 84 countries. Although Defendant has an office in New York County, it cannot be said that it is 'at home' in New York. In addition, its registration to do business in New York does not constitute consent to submit to general jurisdiction in New York for causes of action that are unrelated to its affiliation with New York.

Okoroafor v. Emirates Airlines, NY Slip Op 03994 (1st Dep't June 22, 2021)

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Legal malpractice.

The Appellate Division, upon a jury verdict in favor of defendant, and appeal therefrom, affirmed the denial of plaintiff's post-trial motion to set aside the jury's verdict. It is well-settled that in order to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. In order to establish causation, a plaintiff must show that, but for the attorney's negligence, he would have prevailed in the underlying action. Here, the jury's verdict that defendant did not depart from the requisite standard of care by failing to call a surgeon as an expert witness at the trial of plaintiff's medical malpractice action was not utterly irrational or against the weight of the evidence. The record presents a valid line of reasoning and permissible inferences that could have led the jury to find that before defendant rested his case, he informed the trial court that he intended to call the surgeon but could not locate her during the recess. The jury could have reasonably concluded that under the circumstances defendant could not have done more to secure the surgeon's testimony and. therefore, in not calling her before resting, he did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.

Warren v. Silas, NY Slip Op 03930 (1st Dep't June 17, 2021)

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Equitable estoppel.

When a party with full knowledge, or with sufficient notice of its rights and of all the material facts, freely does what amounts to a recognition or adoption of a contract or transaction as existing, or acts in a manner inconsistent with its repudiation, and so as to affect or interfere with the relations and situation of the parties, that party acquiesces in and assents to it and is equitably estopped from impeaching it, even if it was originally void or voidable. Estoppel is applied in accordance with established general principles, so that the transactions and dealings may result justly and fairly with the parties concerned with them.

Bernard v. Citibank, N.A., NY Slip Op 03822 (2d Dep't June 16, 2021)

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A deficient notice of claim.

The Appellate Division affirmed the Order which granted defendants' motion for summary judgment dismissing the complaint. Plaintiff concedes that defendants are not liable for her injuries on the ground that they were negligent in failing properly to clear the sidewalk of snow and ice, because at the time she slipped and fell, there was a storm in progress, and therefore they had no legal duty to begin snow and ice removal efforts. Instead, in opposition to defendants' motion, plaintiff argues for the first time that defendants are liable because their employee negligently directed her to walk in an unsafe area. However, nowhere in her notice of claim, the complaint, or the verified bill of particulars does plaintiff allege that the employee directed her to go around his snow blower, causing her to step into an accumulation of snow that obscured the curb, from which she fell into the roadway. Contrary to plaintiff's contention, there is no allegation in her notice of claim, pleadings, or testimony that afforded defendants notice of this new theory of liability. Even if the pleadings and testimony had raised this new theory, plaintiff could not use them to rectify deficiencies in the notice of claim. Moreover, as the new theory would not have been authorized by General Municipal Law § 50-e(6), even if plaintiff had sought to amend the notice of claim, it is irrelevant whether defendants would be prejudiced by it.

Wilson v. City of New York, NY Slip Op 03931 (1st Dep't June 17, 2021)

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Law of the case.

The prior order, affirmed by the Appellate Division, denying defendant's summary judgment motion, does not establish as law of the case that defendant was required to designate plaintiff as a tenant on the lease for the restaurant operated by defendant pursuant to a management agreement with plaintiff. The denial of the defendant's motion establishes only that there are triable issues of fact.

37 E. 50th St. Corp. v. Restaurant Group Mgt. Servs., LLC, NY Slip Op 03932 (1st Dep't June 17, 2021)

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New York Supreme's general jurisdiction.

New York Supreme is a court of original, unlimited, and unqualified jurisdiction, pursuant to NY Const, art, VI, § 7[a].

21st Century Pharmacy v. American Intl. Group, NY Slip Op 03820 (2d Dep't June 16, 2021)

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Preliminary injunctions and the element of irreparable harm.

The loss of the goodwill of a viable, ongoing business may constitute irreparable harm warranting the grant of preliminary injunctive relief.

Advent Software, Inc. v. SEI Global Servs., Inc., NY Slip Op 03807 (1st Dep't June 15, 2021)

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Pre-discovery summary judgment.

Defendant's argument that discovery is required is unavailing, as the alleged factual issues raised by defendant are immaterial. They do not rebut plaintiff's prima facie showing of its entitlement to judgment as a matter of law or demonstrate the need for further inquiry into his defenses or counterclaims.

361 Broadway Assoc. Holdings, LLC v. Morales, NY Slip Op 03806 (1st Dep't June 15, 2021)

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Assumption of the risk.

Plaintiff alleges that he was injured when, as a passenger sightseeing on defendant's boat, he stood up as the boat was rising up and down as a result of passing waves, then slipped and fell. Defendant established entitlement to judgment as a matter of law based on the doctrine of primary assumption of the risk., as his evidence shows that plaintiff's injuries arose from commonly appreciated risks inherent in the recreational activity in which he was engaged. 

Plaintiff' argues that, even if the primary assumption of the risk doctrine applies, he could not be deemed to have assumed certain increased risks beyond those inherent in the activity, noting the risks created by defendant's alleged reckless conduct in operating the boat, the presence of alcohol on board, the absence of life jackets, and his inexperience with boats. The Appellate Division rejected the argument as conclusory and otherwise unsupported by expert opinion or the circumstances of the incident.

Dismissed.

Paulino v. Braun, NY Slip Op 03668 (1st Dep't June 19, 2021)

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