Promissory notes and summary judgment in lieu of a complaint.

Practice point: To establish prima facie entitlement to summary judgment in lieu of a complaint, a plaintiff must show that the defendant executed a  promissory note containing an unequivocal and unconditional obligation to repay, and defendant's failure to pay in accordance with the note's terms. Once the plaintiff submits evidence establishing these elements, the burden shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense.

Student note: .Whether a note precludes a fraud in the inducement defense hinges upon the language used by the parties. The key is whether the obligor's reliance on a proffered misrepresentation is reasonable in light of the language used in the note.

Case: Zyskind v. FaceCake Mktg. Tech., Inc., NY Slip Op 08781 (1st Dept. 2012).

Here is the decision.

Wednesday’s issue: Preemption.

Liability of joint tortfeasors.

Practice point: CPLR 1601(1) provides that a joint tortfeasor whose culpability is 50% or less is not jointly liable for all of a plaintiff's non-economic loss but is severally liable for its proportionate share.

Student note: Under the statute, the trier of fact must consider the relative culpable conduct of a nonparty in apportioning culpability, unless the plaintiff proves that, with due diligence, he was unable to obtain jurisdiction over the nonparty.

Case: Belmer v. HHM Assoc., Inc., 08779 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Promissory notes and summary judgment in lieu of a complaint.

Emotional distress damages in a medical malpractice action.

Practice point: The emotional distress damages purportedly suffered by the plaintiff as a result of a blood transfusion, which allegedly became necessary because of the defendants' malpractice, are compensable in this action to recover damages for medical malpractice. All that is needed to recover for emotional injury is breach of defendant’s duty to plaintiff that results directly in emotional harm, and evidence sufficient to guarantee the genuineness of the claim.

Student note: Here, the court held that, inasmuch as the plaintiff has alleged from the outset that receiving a transfusion would violate her religious beliefs as a Jehovah's Witness, the record contained a sufficient guarantee that her claim of having suffered emotional distress as a result of the transfusion is genuine.

Case: DiGeronimo v. Fuchs, NY Slip Op 08685 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Liability of joint tortfeasors.

Hospital's liability for acts of a private attending physician.

Practice point: In general, a hospital cannot be held vicariously liable for the negligence of a private attending physician.

Student note: A hospital cannot be held concurrently liable with such a physician unless its employees commit independent acts of negligence or the attending physician's orders are contraindicated by normal practice.

Case: Corletta v. Fischer, NY Slip Op 08682 (2d Dept.2012).

Here is the decision.

Tomorrow’s issue: Emotional distress damages in a medical malpractice action.

Court holiday.

The courts are closed to mark Christmas Day.

A safe, happy, and blessed holiday to you all.

Tomorrow's issue: Hospital's liability for acts of a private attending physician.

Cross motions for summary judgment.

Practice point: Generally, a cross motion for summary judgment made more than 120 days after the filing of a note of issue may be considered on its merits if another party has made a timely, pending motion on nearly identical grounds.

 Student note: Here, however, the cross motion was not responsive to a timely, pending motion for summary judgment and, therefore, the Supreme Court was without authority to consider it on its merits.

Case: Bicounty Brokerage Corp. v. Burlington Ins. Co., NY Slip Op 08472 (2d Dept. 2012).

Here is the decision.

Wednesday’s issue: Hospital’s liability for acts of a private attending physician.

Failure to file a note of issue.

Practice point: While the failure to comply with a court order to file a note of issue may provide the basis for dismissal under CPLR 3216, courts may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal are met.

Student note: A 90-day demand to file a note of issue is one of the statutory preconditions, pursuant to CPLR 3216[b][3].

Case: Alii v. Baijnath, NY Slip Op 08469 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Cross motions for summary judgment.

Workers' Compensation Law.

Practice point: The receipt of workers' compensation benefits is the exclusive remedy that a worker may obtain against an employer for losses suffered as a result of an injury sustained in the course of employment.

Student note: A person may be deemed to have more than one employer for purposes of the Workers' Compensation Law, a general employer and a special employer. Moreover, where facts demonstrate the plaintiff's dual employment status, whether the relationship between two corporate entities is that of joint venturers, parent and subsidiary, corporate affiliates, or general and special employers, immunity will be extended to all the plaintiff's employers.

Case: Alfonso v. Pacific Classon Realty, LLC, NY Slip Op 08468 ((2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Failure to file a note of issue.

Vacating a default, and law office failure.

Practice point: In order to vacate the default in answering the complaint, the defendant is required to demonstrate a reasonable excuse for the failure to serve an answer and a potentially meritorious defense, pursuant to CPLR 5015[a].

Student note:  While the Supreme Court has the discretion to accept law office failure as a reasonable excuse, the excuse must be supported by detailed allegations of fact explaining the failure.

Case: HSBC Bank USA v. Wider, NY Slip Op 08285 (2d Dept. 2012).

Here is the decision 

Tomorrow’s issue: Workers’ Compensation Law.

Expert testimony.

Practice point: Expert testimony is unnecessary unless it assists the jury in clarifying an issue which requires professional or technical knowledge possessed by an expert and beyond the comprehension of a typical juror.

Student note: The admissibility and scope of expert testimony is a determination within the discretion of the trial court.

Case: Galasso v. 400 Exec. Blvd., LLC, NY Slip Op 08282 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Vacating a default, and law office failure.

Motion for judgment as a matter of law.

Practice point: To succeed on a motion for judgment as a matter of law, pursuant to CPLR 4401, a defendant has the burden of showing that there is no rational process by which the jury could find in favor of the plaintiff and against the moving defendant.

Student note: In determining whether the defendant has met this burden, a court must accept the plaintiff's evidence as true and accord the plaintiff the benefit of every reasonable inference which can reasonably be drawn from the evidence presented at trial.

Case: Figueroa v. City of New York, NY Slip Op 08279 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Expert testimony.