Dismissal of a claim of medical malpractice.

On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice, or that any alleged departure did not proximately cause the plaintiff's injuries. If the defendant makes this showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden.  Summary judgment is not appropriate in a medical malpractice action where the parties put forward conflicting medical expert opinions. However, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact.

Gargano v. Langman, NY Slip Op 01279 (2d Dep't March 15, 2023)

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Injunctive relief.

In order to establish the right to a preliminary injunction, the movant must demonstrate: (1) the likelihood of success on the merits; (2) irreparable injury unless the injunction issues; and (3) that the equities balance in the movant's favor, pursuant to CPLR 6301. The decision whether to grant or deny a preliminary injunction rests in the sound discretion of the court hearing the motion. In the absence of unusual or compelling circumstances, appellate courts are reluctant to disturb the motion court's determination.

Benaim v. S2 Corona, LLC, NY Slip Op 01274 (2d Dep't March 15, 2023)

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Negligence claims.

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that it was not at fault in the happening of the accident. It is well-settled that there can be more than one proximate cause of an accident, and the issue of proximate cause is for the trier of fact to decide. 

Moe-Salley v. Highbridge House Ogden, LLC, NY Slip Op 01187 (2d Dep't March 8, 2023

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Appellate practice.

No appeal lies from an order denying reargument.

U.S. Bank N.A. v. Zaccagnino, NY Slip Op 01208 (2d Dep't March 8, 2023)

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Appellate practice.

There is no appeal as of right from the portion of the order sua sponte dismissing the complaint, pursuant to CPLR 5701[a][2]. However, the Appellate Division may deem the notice of appeal from that branch of the order a motion for leave to appeal, and grant leave, pursuant to CPLR 5701[c].

D'Arata v. NY Post, NY Slip Op 01232 (1st Dep't March 9, 2023)

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Summary judgment motions and discovery.

There should be a reasonable opportunity to conduct discovery before the motion is decided. The party opposing the motion is entitled to further discovery when it appears that there may be facts supporting its position but those facts cannot yet be stated.

Cruz v. Fanoush, NY Slip Op 01178 (2d Dep't March 8, 2023)

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A motion to vacate the note of issue.

Defendant's motion is denied since there was no misstatement of material fact in the certificate of readiness, which correctly stated that discovery was complete, and defendants failed to identify any outstanding discovery or to explain their delays in prosecuting the third-party action. Defendants' assertion that discovery might be necessary because one of the third-party defendants had indicated it would appear after defaulting does not warrant vacatur and a further delay in resolving plaintiff's claim. 

Tatis v. Triborough Constr. Servs., Inc., NY Slip Op 01247 (1st Dep't March 9, 2023)

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Liability on a contract to provide legal services.

The parties entered into a written engagement agreement pursuant to which plaintiff agreed to provide legal services in connection with the proposed sale of defendant's business in exchange for the payment of plaintiff's hourly rates. Plaintiff would bill defendant upon the earlier of either defendant's abandoning the proposed sale or the closing of the proposed sale. The engagement letter permitted defendant to discharge plaintiff for any reason and at any time, upon reasonable notice. In the event of discharge, plaintiff would be entitled to all unpaid fees, costs, out-of-pocket expenses, and disbursements, within 30 days of being discharged. Plaintiff was also permitted to withdraw from representation of defendant under certain circumstances. In the event of withdrawal, defendant was to immediately pay all unpaid fees, costs, out-of-pocket expenses, and disbursements to plaintiff. The parties entered into an amended engagement agreement in which plaintiff agreed to defer payment for additional work until the end of the proposed sale engagement. The amended engagement agreement was substantially identical to the engagement letter. Plaintiff's retention ended acrimoniously.

The court rejects defendant's argument that it was entitled to partial summary judgment limiting plaintiff's recoverable fees to the ratable proportion of the work it completed based on plaintiff's initial fee estimate provided at the start of the parties' business relationship. The record is clear that the parties never agreed to a cap on fees and defendant does not eliminate any issues of fact concerning the amount of the fee estimate or explain what the pro rata share of fees would be.

Plaintiff is granted summary judgment as to liability since it established that there was a valid contract for legal services; that, pursuant to the contract, plaintiff performed legal work for defendant's benefit; and that, following termination of plaintiff's services, defendant has not paid plaintiff. The court defers for trial the issue of the amount of damages and the issue of whether the firm impermissibly charged an excessive fee.

White & Case LLP v. Shipman Assoc, LLC, NY Slip Op 01249 (1st Dep't March 9, 2023)

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Motions to dismiss and summary judgment.

On a motion to dismiss made under CPLR 3211(a) or (b)], either party may submit any evidence that could properly be considered on a motion for summary judgment, regardless of whether issue has been joined. If a court intends to treat the motion as one for summary judgment, it must give the parties notice of its intention to do so, pursuant to CPLR 3211(c).

Champion Mtge. Co. v. Antoine, NY Slip Op 01176 (2d Dep't March 8, 2023)

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Intentional infliction of emotional distress.

Under New York law, the cause of action has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.

Brown v. New York Design Ctr., Inc., NY Slip Op 01228 (1st Dep't March 9, 2023)

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Leave to amend.

Leave to amend a pleading is freely given in the absence of prejudice or surprise to the opposing party, pursuant to CPLR 3025[b]. However, the motion will be denied where the proposed amendment is palpably insufficient or patently devoid of merit.  Here, the plaintiffs' motion for leave to amend the complaint to add a claim for punitive damages is denied. The allegations are palpably insufficient to demonstrate that the defendant's conduct evinced a high degree of moral culpability or constituted willful or wanton negligence or recklessness. 

Buccigrossi v. Glatman, NY Slip Op 01174 (2d Dep't March 8, 2023)

Here is the decision.