In assigning liability, how many degrees of separation can there be as between the surgeon and the hospital?

Three days after having been admitted to the hospital, plaintiff was referred to an attending vascular surgeon, who treated her and performed an unsuccessful saphenous vein bypass. In Cunningham v. St. Barnabas Hosp., decided on January 30, 2007, the First Department affirmed that "the hospital is not liable for the acts of the private attending physician." Nor does liability run to a hospital resident who "merely assisted" and took orders from the operating surgeon.

When stipulating to a settlement, is "You've got mail" enough?

No, according to the Second Department in DeVita v. Macy's E., Inc., decided on January 23, 2007. "The plain language of CPLR 2104 requires that such an agreement be in writing and signed by the parties (or attorneys of the parties) to be bound by it," and here it was determined that "a confirmatory e-mail sent to the plaintiffs' former attorney by counsel to the insurer of one of the defendants, either alone or in conjunction with an e-mail sent by the plaintiffs' former counsel in response, did not constitute a writing sufficient to bring the purported settlement into the scope of CPLR 2104."

What showing is necessary in seeking the disclosure of employee records?

In Beckles v. Kingsbrook Jewish Med. Ctr., decided on January 23, 2007, the Second Department denied plaintiff's demand for documents relating to the qualifications of more than 100 of defendant's employees. While looking to support her racial discrimination claim, plaintiff had made no showing that the employees in question were white or that their jobs had been comparable to hers in terms of requisite credentials. In short, plaintiff had not met the "material and necessary" threshold of CPLR 3101(a).

"Turn out the lights, the party's over..."

In Timoney v. Newmark & Co. Real Estate, decided on January 16, 2007, the Second Department invoked res judicata in granting defendant's motion to dismiss. In 1999, plaintiff had brought the action which was dismissed in 2001. In denying leave to renew, the court said, "The plaintiff may not relitigate claims arising from the same transaction or series of transactions, notwithstanding his attempts to allege new facts or theories of recovery."

Other than that, Counselor, what do you think about him?

On January 16, 2007, in O'Neil v. Klass, the Second Department agreed that plaintiff had been deprived of a fair trial because, among other things, defense counsel had made "many improper, inflammatory remarks during the cross-examination of the plaintiff's experts and summation. For instance, during the cross-examination of one of the plaintiff's expert witnesses, the defense counsel repeatedly characterized the witness's responses as 'lies,' accused the witness of 'deliberately misleading the jury,' and called him 'an evasive person' as well as a 'professional' witness. In summation, he stated '[T]he man is a lie,' and argued that the witness was a 'self-admitted professional witness.'"

Time Matters.

On January 18, 2007, in Cabibel v. XYZ Associates, the First Department reinstated the complaint because defendants, without seeking leave, had moved for summary judgment 60 days after the date set by the court. What's more, defendants had not sought to enlarge their time to file, and they offered an excuse for their lateness only in their reply to plaintiff's opposition.

Can you get a case restored more than a year after it has been stricken from the trial calendar, pursuant to CPLR 3404?

Yes, according to the First Department in Kaufman v. Bauer, decided on January 16, 2007. The Court has the discretion to grant a restoration motion if the movant demonstrates the merits of the claim; a lack of prejudice to the other side; a lack of intent to abandon the action; and a reasonable excuse for the delay.

Q. When do you lose even when you win?
A. When you don't timely enter.

Plaintiffs did not move within one year, as required by CPLR 3215(c), for leave to enter a default judgment after the defendant had failed to answer the complaint. To defeat a motion to dismiss as to that defendant, they had to demonstrate a reasonable excuse for the delay and a meritorious cause of action. In Costello v. Reilly, decided on January 9, 2007, the Second Department found that plaintiffs had demonstrated neither: after a delay of more than four years, their excuse of law office failure was unsubstantiated, and the verified complaint alone could not establish a meritorious cause of action since it was verified by plaintiffs' attorney and not by plaintiffs themselves.

Putting Too Fine a Point on Court Rules

In Lee v. Marino, decided on January 9, 2007, the First Department found that the motion court had "clearly abused its discretion" in striking an affidavit because it violated court rules regarding the length of the writing and the use of exhibit tabs. The Court said these were not "gross" violations which would justify denying the plaintiff her day in court.

When is an insurance policy "in force"?

On November 8, 2004, an insurer served a complaint claiming that the insured had fraudulently obtained two life insurance policies which contained language to the effect that they could not be contested after they had been in force, during the insured's lifetime, for two years from the earlier of the policy date or the issue date.

The policy date for both was November 1, 2002, and the issue dates were November 8, 2002, and December 3, 2002, respectively.

When the insured moved to dismiss because the period in which to contest the policies had expired, the insurer argued that the policies were contestable because they were not in force prior to November 8, 2002.

On January 9, 2007, in Security Mutual v. Herpal, the First Department held the complaint to be time-barred in New York, where the issue date controls unless expressly stated in the writing. Here, the insurer had given the insured an earlier date to trigger the incontestability period.

Does it sound in malpractice when the doctor's out?

Not in and of itself, according to the First Department, in Brown v. Bauman, decided on January 4, 2007. Plainfiffs had alleged that the obstetrician's failure to appear in the delivery room in time to deliver their child was a departure from accepted medical practice, and a proximate cause of a laceration of the mother's perineum during the birth. Defendant answered that he had arranged for a substitute physician and, according to his expert's unrebutted affirmation, when an obstetrician is unable to attend a delivery, accepted standards of practice call for the obstetrician to arrange for a competent, experienced, substitute physician. The Court found that the issue, then, is the competence of the substitute, and not defendant's absence from the operating room.