Medical malpractice.

In order to establish liability, the plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that the departure was a proximate cause of the plaintiff's injuries. A defendant moving for summary judgment must make a prima facie showing either that there was no departure from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries. Where the defendant meets its prima facie burden as to both elements, the burden shifts to the plaintiff to rebut the defendant's showing by raising a triable issue of fact as to both the departure element and the causation element. While conflicting expert opinions may raise credibility issues which can only be resolved by a jury, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact. Expert opinions in opposition must address the specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record. An expert opinion that is contradicted by the record cannot defeat summary judgment.

Audette v. Toussaint-Milord, NY Slip Op 00298 (2d Dep't January 19, 2022)

Here is the deciion.

CPLR 5015[a][1].

During divorce proceedings, which commenced in 2014, defendant-husband relocated to a former marital property in North Carolina. In April 2017, after the court granted plaintiff-wife a divorce, defendant chose to represent himself for the remainder of the trial on financial issues which was scheduled to begin on August 8, 2017. Supreme Court denied defendant's repeated requests for an adjournment. On July 24, 2017, the court directed defendant to submit an affidavit from his treating physician to support the claim that his medical condition prevented him from proceeding to trial. On August 4, 2017, defendant submitted a note from a physician's assistant at a North Carolina healthcare center stating that he had preexisting medical conditions, including seizures, and that he had been advised to avoid stressors that could trigger seizures, such as travel, pending testing and further evaluation. When defendant failed to appear for trial, Supreme Court determined him to be in default and held an inquest. After the inquest, a judgment of divorce was entered, memorializing the court's decision. Defendant moved to vacate the judgment.

While the motion court did not dispute defendant's medical issues, it observed that defendant was able to participate in the proceedings from June 2016 to August 2017 and that there were no changes in his condition that would render him unable to attend trial as scheduled. Although defendant's new North Carolina care team recommended that he avoid stressors, defendant was not affirmatively told not to travel. Moreover, the care team only began treating defendant after he had repeatedly sought adjournments. There is no basis to disturb the determination that defendant was using his preexisting medical condition to prolong the proceedings. Denial of defendant's motion is affirmed.

Wilson v. Wilson, NY Slip Op 00389 (1st Dep't January 25, 2022)

Here is the decision.

CPLR 4404(a).

A motion to set aside a jury verdict and for judgment as a matter of law will be granted only if, based on the evidence presented at trial, there is no valid line of reasoning and permissible inferences which could possibly lead a rational jury to the conclusion it reached.

Anarumo v. Herzog, NY Slip Op 00297 (2d Dep't January 19, 2022)

Here is the decision.

A plaintiff's motion to proceed in anonymity.

The court must exercise its discretion to limit the public nature of judicial proceedings only when unusual circumstances necessitate it. Here, plaintiffs submitted an attorney affirmation which merely repeated the relief requested in the order to show cause and made a single vague statement that plaintiffs might suffer further mental harm if their identities were revealed. Plaintiffs failed to provide any specific evidence as to why each unnamed plaintiff should be entitled to proceed anonymously. The motion is denied without prejudice to a new motion or motions supported by proper papers.

Twersky v. Yeshiva Univ., NY Slip Op 00366 (1st Dep't January 20, 2022)

Here is the decision.

Res ipsa loquitur.

Res ipsa loquitur applies when a plaintiff establishes that: (1) the accident is of a kind that ordinarily does not occur in the absence of someone's negligence; (2) the accident was caused by an agency or instrumentality within the defendant's exclusive control; and (3) the accident was not due to any voluntary action or contribution on the part of the plaintiff. Notice is inferred where res ipsa loquitur applies.

Valdez v. Upper Creston, LLC, NY Slip Op 00367 (1st Dep't January 20, 2022)

Here is the decision.

A malicious prosecution claim.

The elements of a claim for malicious prosecution are (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice. Although probable cause and malice are independent elements, the finder of fact may infer malice from a lack of probable cause. 

Vizcaino v. City of New York, NY Slip Op 00293 (1st Dep't January 18, 2022)

Here is the decision.

Jurisdiction in a landlord-tenant dispute.

The Appellate Division reversed the motion court's sua sponte dismissal of the complaint on the ground that this is a landlord-tenant dispute that should have been brought as a summary proceeding in Civil Court. Supreme Court has unlimited general jurisdiction over all real property actions, including those commenced by a landlord against a tenant. In its discretion, the Supreme Court may decline to hear such an action on the ground that a pending action in Civil Court is the proper forum.

A&L 1664 LLC v. Jaspar Hospitality LLC, NY Slip Op 00264 (1st Dep't January 18, 2022)

Here is the decision.

Appellate practice.

An order issued sua sponte is not appealable as of right, pursuant to CPLR 5701[a][2]. However, the Appellate Division may deem the notice of appeal a motion for leave to appeal, and grant leave, pursuant to CPLR 5701[c].

A&L 1664 LLC v. Jaspar Hospitality LLC, NY Slip Op 00264 (1st Dep't January 18, 2022)

Here is the decision.

A motion for a preliminary injunction.

The motion is denied because plaintiff seeks injunctive relief that, effectively, is the ultimate relief sought in the first cause of action. In addition, plaintiff alleges harm that is compensable by measurable money damages, and, therefore, it is not irreparable.

Montgomery v. 215 Chrystie LLC, NY Slip Op 00253 (1st Dep't January 13, 2022)

Here is the decision.

CPLR 3215.

A plaintiff seeking leave to enter a default judgment must file proof of: (1) service of a copy or copies of the summons and the complaint; (2) the facts constituting the claim; and (3) the defendant's default. In order to defeat a facially sufficient motion, the defendant must show either that there was no default, or that it had a reasonable excuse for its delay and a potentially meritorious defense.

U.S. Bank N.A. v. Crockett, NY Slip Op 00211 (2d Dep't January 12, 2022)

Here is the decision.

Summary judgment motions.

The motion court will not consider an affidavit submitted in opposition when the facts alleged therein materially conflict with the party's prior deposition testimony.

Lambert v. Bonilla, NY Slip Op 00251 (1st Dep't January 13, 2022)

Here is the decision.