The admissibility of expert opinions.

Defendants' motion to exclude the opinions by plaintiffs' general causation experts is granted, as plaintiffs failed to sustain their burden of showing that their experts' theory of causation is generally accepted in the relevant scientific community.

Wholey v. Amgen, Inc., NY Slip Op 05910 (1st Dep't November 26, 2024)

Here is the decision.

Defamation.

The elements of a cause of action for defamation are: (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published to a third party without privilege or authorization, (3) amounting to fault as judged by a negligence standard, and (4) either causing special harm or constituting defamation per se. CPLR 3016(a) provides that, "[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint."  Compliance with CPLR 3016(a) is strictly enforced.

Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action. Accordingly, an expression of pure opinion is not actionable, no matter how vituperative or unreasonable it may be. In distinguishing between statements of fact and those of pure opinion, it is necessary to consider the writing as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff.

Tsamasiros v. Jones, NY Slip Op 05814 (2d Dep't November 20, 2024)

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Medical malpractice and punitive damages.

Punitive damages are recoverable in a medical malpractice action only where the defendant's conduct evinces a high degree of moral culpability or willful or wanton negligence or recklessness. The plaintiff may recover punitive damages for a medical professional's act of altering or destroying medical records in an effort to evade potential medical malpractice liability.

Woehrle v. Buono, NY Slip Op 05815 (2d Dep''t November 20, 2024)

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Appellate practice.

The trial transcript is a necessary element of an appellate record, pursuant to CPLR 5526. Here, defendant's failure to include the trial transcript in the record on appeal requires dismissal of the appeal.

Lewis v. Thomas, NY Slip Op 05832 (1st Dep't November 21, 2024)

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Change of venue.

The Appellate Division affirmed the denial of defendants' motion to change venue from New York County to Onondaga County, based upon plaintiff's showing of compelling circumstances sufficient to override the mandate of CPLR 504, while citing CPLR 510[3]. Plaintiff provided evidence that travel to Onondaga County would be a hardship for him and his witness, his treating psychiatrist, based on his limited financial means and the adverse effect it would have on his mental health.

Hicks v. City of Syracuse, NY Slip Op 05831 (1st Dep't November 21, 2024)

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Domestic violence.

The standard for a court's finding of neglect based on domestic violence against a child's mother is preponderance of the evidence, pursuant to Family Court Act §§ 1012[e][iii].

Matter of A.A. (Carlos B.), NY Slip Op 05822 (1st Dep't November 21, 2024)

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Attorneys' fees.

While Business Corporations Law § 626(e) provides that a successful plaintiff in a shareholders' derivative action may recoup legal expenses and attorneys' fees from the proceeds of a judgment, compromise, or settlement in favor of the corporation, it does not authorize the imposition of such expenses on the losing party. Here, the cause of action for attorneys' fees is dismissed.

Schmidt v. Board of Directors of Duane Owners, Inc., NY Slip Op 05778 (1st Dep't November 19, 2024)

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Court holiday.

Appellate practice.

There is no appeal from a court's comments that are dicta.

Matter of Johnson, NY Slip Op 05768 (1st Dep't November 19, 2024)

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Motions for summary judgment.

While a plaintiff is not required to establish freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence and culpable conduct on the part of the plaintiff.

Houston v. McQuiller, NY Slip Op 05594 (2d Dep't November 13, 2024)

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Appellate practice.

While the motion court purportedly denied the motion for reargument, it effectively granted the motion by addressing the merits. Accordingly, the order is appealable, pursuant to CPLR 5701[a][2][viii].

Pierre v. City of New York, NY Slip Op 05652 (1st Dep't November 14, 2024)

Here is the decision.