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Expert Affidavit Did Not Raise a Question of Fact 

In affirming the grant of summary judgment to the defendant hospital, the Second Department explained the flaws in the plaintiffs’ expert’s affidavit, finding the expert did not lay a foundation for an opinion outside the expert’s area of specialization and made “speculative” and “conclusory” assertions:

In opposition, the affidavit of the plaintiffs’ expert did not raise a triable issue of fact. When, as here, “a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . Here, the plaintiffs’ expert failed to lay the requisite foundation. Moreover, even assuming the requisite foundation had been laid, the expert’s assertions that a diagnosis of the fracture at the hospital would have led to adequate immobilization, without specifying what adequate immobilization would have entailed, and may have resulted in “normal healing,” are conclusory and speculative, and thus, insufficient to raise a triable issue of fact as to causation … . Shashi v Nassau Communities Hosp., 2013 NY Sip Op 01818, 2011-04552, Index No 15636/08, 2nd Dept. 3-20-13

 

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“Emergency Exception” to Rule Hospital Is Not Vicariously Liable for Negligence of Non-Employee Physicians Did Not Apply

he Second Department determined the hospital’s (Winthrop-University Hospital’s) motion for summary judgment dismissing the cause of action alleging it was vicariously liable for the actions of a non-employee physician (Raio) should have been granted.  The hospital demonstrated that the “emergency room exception” to vicarious liability for the negligence of a non-employee physician did not apply:

“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee” … . “However, an exception to the general rule exists when a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing” … .

Here, Winthrop-University Hospital made a prima facie showing of its entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it was vicariously liable for the alleged malpractice of Raio by submitting evidence that Raio was not an employee of Winthrop-University Hospital, but rather, an attending physician at the hospital …. Furthermore, Winthrop-University Hospital made a prima facie showing that the emergency room exception was inapplicable, by demonstrating that the decedent was referred to Raio’s care by his own internist … .  Giambona v Hines, et al, 2013, NY Slip Op 01803, 2011-05943, Ind No 7819/07, 2nd Dept. 3-20-13

 

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Injury to Real Property, Waste, Trespass, Conversion and Private Nuisance Actions Based Upon Removal of Trees from Unrecorded Easement

In an action for breach of contract, waste, injury to real property, trespass, conversion and private nuisance, based upon clearing land of trees pursuant to an unrecorded easement, the Second Department wrote:

Pursuant to RPAPL 861(1), a property owner may maintain an action for damages against any person who, without the consent of the owner, removes or causes to be removed trees on the owner’s property … . “To recover damages based on the tort of private nuisance, a plaintiff must establish an interference with his or her right to use and enjoy land, substantial in nature, intentional or negligent in origin, unreasonable in character, and caused by the defendant’s conduct”… . “In order to establish a cause of action to recover damages for conversion, the plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question . . . to the exclusion of the plaintiff’s rights” … . * * *

“[A]n unrecorded conveyance of an interest in real property is deemed void as against a subsequent good faith purchaser for value who acquires his interest without actual or constructive notice of the prior conveyance” … . However, “ [w]here a purchaser has knowledge of any fact, sufficient to put him on inquiry as to the existence of some right or title in conflict with that he is about to purchase, he is presumed either to have made the inquiry, and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to his claim, to be considered as a bona fide purchaser’” …. “This presumption, however, is a mere inference of fact, and may be repelled by proof that the purchaser failed to discover the prior right, notwithstanding the exercise of proper diligence on his part” … .   Schulz v Dattero, et al, 2013 NY Slip Op 01815, 2011-05813, 2012-02942, Index No 876/06, 2nd Dept. 3-20-13

 

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No Proof Misrepresentation Caused Decedent to Disinherit Daughter

In reversing a jury verdict finding that a will had been procured by fraud, i.e., a misrepresentation made to the decedent by one daughter, Zucker, against the other daughter, Ranaldo, resulting in the disinheritance of Ranaldo, the Second Department wrote:

…[T]here was no evidence presented at trial to demonstrate that Zucker conveyed the alleged misrepresentation to the decedent with the intention of inducing the decedent to alter her estate plan …, or that the alleged misrepresentation in fact induced the decedent to change her testamentary plan. There was no evidence presented to show that the decedent considered or discussed disinheriting Ranaldo when she met with her attorney two weeks after the alleged misrepresentation. The decedent’s attorney, who drafted the will, testified that the first time the decedent mentioned disinheriting Ranaldo was at a subsequent meeting, approximately eight months after the alleged misrepresentation. In the absence of any evidence to establish that Zucker conveyed the alleged misrepresentation to the decedent with the intention of inducing the decedent to alter her estate plan, and that the alleged misrepresentation in fact induced the decedent to change her testamentary plan, no valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the jury that the will and the first amendment to the Trust were the product of fraud … . Accordingly, the jury’s verdict was not supported by legally sufficient evidence … .  Matter of Ranaldo, 2013 NY Slip Op 01834, 2011-03624, 2011-03625, 2nd Dept. 3-20-13

 

Late Disclaimer of Coverage Invalid 

In finding the insurer’s (Country-Wide’s) disclaimer of coverage invalid, the Second Department wrote:

[County-Wide’s] written disclaimer of coverage was untimely and invalid as a matter of law (see Insurance Law § 3420[d][2]). It is undisputed that [plaintiff] Jose R. Ramirez gave notice of the accident and claim to Country-Wide in a letter dated June 14, 2011, and that Country-Wide did not issue its disclaimer until August 15, 2011. While an insurer’s time to give written notice of disclaimer “is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage” …, the record demonstrates that the facts supporting the disclaimer in this case were either apparent from the claim documents submitted by Ramirez or were readily ascertainable upon the performance of a cursory investigation by Country-Wide … . Therefore, even if some investigation was warranted in this matter, the burden was on Country-Wide to demonstrate that the two-month delay in disclaiming was reasonably related to its performance of a prompt, diligent, thorough, and necessary investigation … . Since Country-Wide merely made a conclusory statement that the delay was occasioned by its investigation, and provided no details with regard to the specific efforts undertaken in conducting that investigation, it failed to sustain its burden of demonstrating that the delay was excusable, and the disclaimer was untimely as a matter of law … . Matter of Country-Wide Ins. Co. v Ramirez, 2013 NY Slip Op 01828, 2012-02056, Index No 12759/11, 2nd Dept. 3-20-13

 

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Criteria for Dismissal of Cause of Action Based on Documentary Evidence Explained 

The Second Department, in reversing the dismissal of causes of action in a complaint, explained the criteria for dismissal based on documentary evidence:

A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be appropriately granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Here, to the extent that the sponsor’s submissions constituted “documentary evidence” within the meaning of CPLR 3211(a)(1) …, they failed to utterly refute the cooperative’s allegations … . Accordingly, the Supreme Court should have denied those branches of the sponsor’s motion which were to dismiss the first, second, and fourth causes of action pursuant to CPLR 3211(a)(1). North Shore Towers Apts. Inc. v Three Towers Assoc., 2013 NY Slip Op 01812, 2012-00848, Index No 11834/10, 2nd Dept. 3-20-13​

 

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Criteria for Motion to Renew Based on New Facts Not Met

In reversing the trial court’s grant of summary judgment, the Second Department explained that CPLR 2221(a) had been misused to revisit a prior motion, and that the motion should have been brought under CPLR 2221 (e) as a motion for leave to renew based on new facts.  The motion should have been denied because the defendant failed to provide “reasonable justification” for the failure to present the “new” facts in the first motion:

The Supreme Court improperly granted the defendant’s motion, denominated as one pursuant to CPLR 2221(a) to modify the order entered September 28, 2011. CPLR 2221(a) merely provides that certain motions may be made, on notice, to the judge who signed the order that is the subject of the motion. In actuality, the defendant sought to present new facts in partial opposition to the motion for summary judgment, which were not presented on the initial motion. Thus, the defendant’s motion should have been made pursuant to CPLR 2221(e) for leave to renew its prior opposition to the motion for summary judgment, based upon new facts, and we construe it as such. However, the defendant failed to show its entitlement to that relief. The defendant failed to demonstrate “reasonable justification” for its failure to present such facts on the prior motion (CPLR 2221[e][2]). Mount Sinai Hosp v Dust Tr., Inc., 2013 NY Slip Op 01811, 2012-03767, Ind No 10715/10, 2nd Dept. 3-20-13

 

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Court’s Sua Sponte Dismissal of Complaint Reversed

The Second Department reversed the trial court’s sua sponte dismissal of plaintiff’s mortgage foreclosure complaint.  The trial court dismissed the complaint on the ground that the plaintiff lacked standing and imposed sanctions based on plaintiff’s alleged reliance upon a “robosigner” (according to the trial court’s own Internet research).  On the issues of “sua sponte” dismissal and standing, the Second Department wrote:

The Supreme Court abused its discretion in, sua sponte, directing dismissal of the complaint with prejudice and cancellation of the notice of pendency … . “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint. Moreover, as the defendants failed to answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing … . Furthermore, a party’s lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint by the court … .  HSBC Bank USA, NA v Taher, 2013 NY Slip Op 01806, 2011-06455, 2012-00841, Index No 9320/09, 2nd Dept. 3-20-13

 

Amendment of Reply to Add Statute of Limitations Defense Allowed

In affirming the grant of a motion to amend a reply to add the “statute of limitations” defense, the Second Department wrote:

“Leave to amend a pleading should be freely given (see CPLR 3025[b]), provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit” … . “A determination whether to grant such leave is within the Supreme Court’s broad discretion, and the exercise of that discretion will not be lightly disturbed” … . “Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side” … .The plaintiff waived its statute of limitations defense by failing to assert it as an affirmative defense in its initial reply to the appellants’ counterclaims (see CPLR 3211[e]). However, defenses waived under CPLR 3211(e) can nevertheless be interposed by leave of court pursuant to CPLR 3025(b) so long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay … . Aurora Loan Services, LLC v Dimura, et al, 2013 NY Slip Op 01797, 2012-04739,Index No 2455/09, 2nd Dept. 3-20-13

 

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No Appeal Lies from Direction to Settle Judgment on Notice

After denying a motion to set aside a verdict, the trial court directed the parties to settle judgment on notice.  The appeal of ruling was dismissed.  The Second Department explained: “[N]o appeal lies from a decision, or an appealed paper directing the settlement of a judgment (see CPLR 5512[a]; … . Moreover, plaintiff’s right to a direct appeal from any order denying a motion to set aside the verdict terminated with the entry of a judgment (see CPLR 5501…).”  Ryals v New York City Tr. Auth., 2013 NY Slip Op 01630, 9544 21244/04, 1st Dept. 3-14-13

 

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