Friday, April 18, 2014

Legal malpractice claims and settlements.

Practice point:  A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel.  However, a plaintiff's conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a claim.

Student note:  To recover damages in a legal malpractice action, a plaintiff must establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages.  As to causation, a plaintiff must show that, but for the attorney's negligence, he or she would have prevailed in the underlying action or would not have incurred any damages.

Case:  Benishai v. Epstein, NY Slip Op 02404 (2d Dept. 2014).

Here is the decision.

Monday's issue: Transfer of assets and Medicaid ineligibility.

Thursday, April 17, 2014

A time-barred fraud claim.

Practice point:  A fraud-based action must be commenced within six years of the fraud, or within two years from the time the plaintiff discovered the fraud, or could with reasonable diligence have discovered it, whichever is later, pursuant to CPLR 213[8].

Student note:  On a motion to dismiss a complaint as time-barred, pursuant to CPLR 3211(a)(5), the defendant must establish, prima facie, that the time in which to commence the action has expired. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

Case: Belzer v. Hirsch, NY Slip Op 02403 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Legal malpractice claims and settlements.

Wednesday, April 16, 2014

Standing to commence a mortgage foreclosure action.

Practice point: A plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation. Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity.

Student note: Where the defendant puts standing into issue, the plaintiff must prove its standing in order to be entitled to relief.

Case: Bank of N.Y. Mellon v. Gales, NY Slip Op 02402 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A time-barred fraud claim.

Tuesday, April 15, 2014

A motion for leave to renew.

Practice point:  The Appellate Division found that the Supreme Court providently exercised its discretion in granting that branch of the defendants' motion which was for leave to renew their opposition to the plaintiff's motion for summary judgment on the issue of liability, which motion had been granted in a prior order. The defendants offered a reasonable excuse for not including an affidavit from a certain nonparty witness in their prior opposition to the motion. It was not a mistake for the Supreme Court to consider the nonparty affidavit, even though it was signed and notarized in Florida and was not accompanied by a certification in accordance with CPLR 2309(c). This was not a fatal defect, as the plaintiff was not prejudiced thereby, pursuant to CPLR 2001.

Student note:  A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221[e][2], and must contain contain reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][3].

Case:  Ali v. Verizon N.Y., Inc., NY Slip Op 02401 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Standing to commence a mortgage foreclosure action.

Monday, April 14, 2014

A hearing on proper service of process.

Practice point:  The Appellate Division found that the Supreme Court should have granted those branches of the appellant's motion which were pursuant to CPLR 5015(a)(4), to vacate the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8), to dismiss the complaint for lack of personal jurisdiction. The Supreme Court's finding that the process server delivered the summons and complaint to the appellant's youngest daughter, who, at the time of service, was 15 ½ years old, was not warranted by the facts There was insufficient evidence at the hearing to establish that the description in the affidavit of service matched the actual appearance of the appellant's youngest daughter. In addition, neither the affidavit of service nor the process server's testimony established that papers were mailed to the appellant's last known residence, pursuant to CPLR 308[2].

Student note:  The Appellate Division's authority to review a determination rendered after a hearing is as broad as that of the hearing court, and may render the determination it finds warranted by the facts, taking into account, in a close case, that the hearing court had the advantage of seeing the witnesses.

Case:  HSBC Bank USA, N.A. v Hamilton, NY Slip Op 02261 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A motion for leave to renew.

Friday, April 11, 2014

Post-appeal motions to renew.

Practice point:  A court of original jurisdiction may entertain a motion for leave to renew based on new facts even after an appellate court has affirmed the original order.  However, on a post-appeal motion to renew, the movant bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court' in order to imbue the appellate decision with a modicum of certainty.

Student note: A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221[e][2], and must offer reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][3].

Case:  Davi v. Occhino, NY Slip Op 02253 (2d Dept. 2014).

Here is the decision.

Monday's issue: A hearing on proper service of process.

Thursday, April 10, 2014

Disqualifying an attorney.

Practice point:  To disqualify an attorney under rule 3.7(a) of  22 NYCRR 1200.0, the Rules of Professional Conduct, the moving party must demonstrate that the testimony of the opposing party's counsel is necessary to the moving party's case, and that such testimony would be prejudicial to the opposing party.

Student note: The Rules of Professional Conduct are not binding authority and provide guidance only.

Case: Cathedral Ct. Assocs., L.P. v Cathedral Props. Corp., NY Slip Op 02252 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Post-appeal motions to renew.