Wednesday, March 4, 2015

Police failure to record information regarding a driver involved in a traffic accident.

Practice point:  Plaintiff alleges that, after she was struck by an automobile, the responding officers failed to record the identity of the owner and/or operator of the vehicle that struck plaintiff.

The Appellate Division determined that the City is entitled to summary judgment because the investigation of the accident at issue here is a governmental function, and so the City is not liable for failing to properly investigate the incident unless there existed a special duty to plaintiff, in contrast to a general duty owed to the public.

Here, plaintiff cannot establish a special relationship through defendants' violation of a statutory duty, because none of the cited sections of the Vehicle and Traffic Law authorize a private right of action, nor were they otherwise enacted for the benefit of a particular class of persons as opposed to the public at large

 Student note:  While the statute imposes criminal liability if the vehicle's operator does not identify himself or herself, there is no statutory provision for governmental tort liability.

Case:  Bouet v. City of New York, NY Slip Op 01567 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A defendant's establishing a lack of constructive notice in a slip and fall case.

Tuesday, March 3, 2015

Easement by prescription and declaratory judgment.

Practice point:  The Appellate Division determined that the defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence establishing that the plaintiffs' claim is based on their possession and occupancy of the property, and therefore is inconsistent with an easement by prescription. 

Student note:  To the extent that this is a declaratory judgment action, it was remitted for the entry of a judgment declaring that the plaintiffs do not have a prescriptive easement over the property.

Case:  Kostovetsky v. Rockaway Hunting Club, NY Slip Op 01421 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Police failure to record information regarding a driver involved in a traffic accident.

Monday, March 2, 2015

A common tenancy in unequal shares.

Practice point:  The Appellate Division affirmed that plaintiff, as administrator of her husband's estate, was entitled to judgment in an amount equal to his property interest and the appointed referee's award of that value.

The Appellate Division determined that the court properly considered defendant's undisputed testimony that she alone contributed all of the funds utilized to purchase and maintain the property, and that she had resided in the home since its purchase. Defendant further testified that her son, plaintiff's husband, never resided in the home and that his name was put on the deed solely for defendant's convenience.

Student note:  The presumption that tenants-in-common share equally in their common tenancy may be rebutted by facts showing that they hold the tenancy in unequal shares. A court acting in equity may take into account the amounts invested in the property by the respective tenants in determining the shares to which they are entitled.

Case:  Ampratwum v. Appiah, NY Slip Op 01533 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Easement by prescription and declaratory judgment.

Friday, February 27, 2015

A dismissed counterclaim for tortious interference with prospective economic relations.

Practice point:  The Appellate Division affirmed the dismissal of the counterclaim for tortious interference with prospective economic relations. The claim requires a showing that the interference was accomplished with malicious intent or by wrongful means. 'Wrongful means' includes physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure.

Student note:  Where the interfering conduct is a civil suit, it must be shown that the suit was frivolous.

Case:  Arnon Ltd (IOM) v. Beierwaltes, NY Slip Op 01156 (1st Dept. 2015)

Here is the decision.

Monday's issue:  A common tenancy in unequal shares.

Thursday, February 26, 2015

Attorney work product.

Practice point:  The Appellate Division found that, contrary to the plaintiff's contention, she did not meet her burden of establishing that the audio recording of an interview she conducted with the defendant prior to the commencement of the instant action constituted attorney work product. Among other things, the plaintiff failed to show that the recording contained elements of opinion, analysis, theory, or strategy.

The Appellate Division rejected the plaintiff's alternative argument that the recording constitutes trial preparation material, which is subject to a conditional privilege under CPLR 3101(d)(2).  The conclusory assertions set forth in the supporting affidavit are insufficient to meet the burden of establishing, with specificity, that the recording was prepared exclusively in anticipation of litigation.

Student note:  Pursuant to CPLR 3102(c), attorney work product, which is absolutely privileged, is generally limited to materials prepared by an attorney, while acting as an attorney, which contain the attorney's legal analysis, conclusions, theory, or strategy. The mere fact that a narrative witness statement is transcribed by an attorney does not make the statement work product.

Case:  Geffner v Mercy Med. Ctr., NY Slip Op 01411 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A dismissed counterclaim for tortious interference with prospective economic relations.

Wednesday, February 25, 2015

Summary judgment on an attorney's account stated claim.

Practice point:  The Appellate Division reversed, and granted plaintiff-attorney's motion. Plaintiff made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it entered into a retainer agreement with defendant and that defendant did not object to the invoices that were sent pursuant to that agreement.

Although defendant claims he signed the retainer agreement only in his capacity as agent and principal for nonparty LLCs, the agreement is addressed to defendant individually, and he signed it individually, not on behalf of the LLCs. Therefore, he is liable for the legal fees.

In addition, defendant did not timely object to the invoices. The parties' agreement provided that "[f]ailure to object to any bill within thirty days from the mailing shall be deemed an acknowledgment of the amount owed ...." Plaintiff sent defendant regular invoices, and defendant did not make any objections until plaintiff's commencement of a prior action. Such belated protest is insufficient to defeat summary judgment. The Appellate Division noted that the only evidence of a protest is defendant's affidavit, asserting, without any details, that he advised plaintiff that its invoices were incorrect. This is insufficient to raise a triable issue of fact.

Student note: A plaintiff does not have to establish the reasonableness of its legal services in an action for an account stated, as plaintiff's failure to object to the invoices is construed as acquiescence as to their correctness.

Case:  Mintz & Gold LLP v. Daibes, NY Slip Op 01388 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Attorney work product.

Tuesday, February 24, 2015

A plaintiff's inability to identify the cause of the fall.

Practice point:  The Appellate Division affirmed the dismissal of this slip and fall action. The defendant established its prima facie entitlement to judgment as a matter of law through the plaintiff's deposition testimony, which demonstrated that the plaintiff could not identify the cause of his fall without resorting to speculation.  In opposition, the plaintiff failed to raise a triable issue of fact.

Student note:  A plaintiff's inability to identify the cause of the fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Case:  Calciano v Tarragon Corp., NY Slip Op 01234 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment on an attorney's account stated claim.