Monday, July 6, 2015

A minority shareholders' action.

Practice point:  The corporation's minority shareholders brought this action against the majority shareholders, officers, and directors, alleging among other things, that defendants improperly diverted corporate opportunities to other companies owned by them, excluding plaintiffs from those opportunities.

The Appellate Division reversed the motion court's dismissal. While the complaint fails to set forth with particularity plaintiffs' demand that the board commence an action against defendants, pursuant to Business Corporation Law § 626[c], the complaint adequately sets forth plaintiffs' reasons for not making a demand, also pursuant to § 626[c]. It alleges that defendants, as the corporation's sole directors, were self-interested in the challenged conduct because they received a personal benefit as the owners of the corporations to which they diverted corporate opportunities. In addition, plaintiffs allege that defendants, in their role as directors, ignored plaintiffs' earlier attempts to compel them to cease their alleged wrongdoing.

Student note:  The Appellate Division also found that it was inappropriate for the motion court to dismiss the breach of contract cause of action in light of the allegations that defendants, as directors, did not act in good faith.

Case:  Soho Snacks Inc. v. Frangioudakis, NY Slip Op 05603 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A double-parked vehicle and summary judgment as to liability.

Thursday, July 2, 2015

Contracts and damages for lost profits.

Practice point:  Where a plaintiff seeks to recover damages for lost profits, those profits must be within the parties' contemplation at the time the contract was entered into. While they must be proven with reasonable certainty, damages resulting from the loss of future profits are often an approximation.

Student note:  To prevail on a cause of action alleging breach of contract, a plaintiff must demonstrate that it sustained actual damages as a natural and probable consequence of the defendant's breach.

Case:  Family Operating Corp. v. Young Cab Corp., NY Slip Op 05437 (2d Dept. 2015)

Here is the decision.

Monday's issue: A minority shareholders' action.

Wednesday, July 1, 2015

A fall on wet bus steps.

Practice point:  The Appellate Division reversed the trial court and dismissed this action in which plaintiff allegedly was injured when he slipped and fell on the wet steps of defendant's bus as he was exiting its front door. At his deposition, plaintiff stated that it was snowing on the day of the accident, and that "lots of snow [had] accumulated everywhere."

The Appellate Division found that, contrary to the Supreme Court's determination, defendant demonstrated its prima facie entitlement to judgment as a matter of law by showing that it did not breach any duty to the plaintiff under the circumstances that existed at the time of the accident. Given the inclement weather conditions when the accident occurred, it would be unreasonable to expect defendant to constantly clean the bus steps.

Student note:  A common carrier is subject to the same duty of care as any other potential tortfeasor, namely, reasonable care under all the circumstances of the particular case.

Case:  Batista v. MTA Bus Co., NY Slip Op 5430 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Contracts and damages for lost profits.

Tuesday, June 30, 2015

Attorneys' fees and expenses for frivolous conduct.

Practice point: The court is authorized to impose attorneys' fees and expenses upon a party for frivolous conduct that "asserts material factual statements that are false," pursuant to 22 NYCRR 130-1.1 [c][3].

Student note:  Rule 130-1.1 does not require a full evidentiary hearing, but states that attorney's fees and costs may be awarded "after a reasonable opportunity to be heard," and that "[t]he form of the hearing shall depend upon the nature of the conduct and the circumstances of the case," pursuant to 22 NYCRR 130-1.1[d].

Case:  Martinez v. Carney, NY Slip Op 05573m(1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A fall on wet bus steps.

Monday, June 29, 2015

An action alleging discrimination because of disability.

Practice point:  The Appellate Division reversed the granting of defendant's motion for summary judgment on this disability discrimination claim.  The Appellate Division noted that an employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested, pursuant to NYCRR 466.11[j][4], and, viewing the evidence in the light most favorable to the nonmovant, and found that  plaintiff's responses to the notice of proposed termination could reasonably have been understood as a request for accommodation, which the Department of Correctional Services rejected by terminating plaintiff's employment based on her inability to return to work within the one year permitted under Civil Service Law § 71.

The Appellate Division concluded that defendants failed to establish, prima facie, that they engaged in a good faith interactive process that assessed plaintiff's needs and the reasonableness of her requested accommodation.

Student note:  An employer normally cannot obtain summary judgment on a disability discrimination claim pursuant to Executive Law § 296 unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation. The employer cannot present such a record if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request.

Case:  Cohen v. State of New York, NY Slip Op 05147 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Attorneys' fees and expenses for frivolous conduct.

Friday, June 26, 2015

Auto accidents, stop signs, and right-of-way.

Practice point:  The Appellate Division affirmed the denial of plaintiff's summary judgment motion on liability in this action where plaintiff seeks damages for injuries sustained in an auto accident.Defendant testified that he stopped at an intersection, looked to the direction of oncoming traffic, and observed that plaintiff's vehicle was at a corner one block away. Defendant further testified that he began to move his vehicle because he believed that he had time to cross over the intersection, as plaintiff's vehicle was "at the other corner." He also testified that he blew his horn five seconds before the vehicles collided, and that the impact occurred between the front bumper of his vehicle and the front driver's side of plaintiff's vehicle.

There are issues of fact as to which driver entered the intersection first, which driver had the right-of-way, and whether plaintiff could have exercised reasonable care to avoid the collision.

Student note:  The fact that defendant's approach in the intersection was regulated by a stop sign and no traffic control devices regulated plaintiff's approach is not a basis for awarding plaintiff summary judgment. In addition, even if plaintiff had the right-of-way, she was still obliged to be vigilant for oncoming traffic.

Case:  Parris v. Gonzalez-Martinez, NY Slip Op 05104 (1st Dept. 2015)

Here is the decision.

Monday's issue: An action alleging discrimination because of disability.