Wednesday, April 30, 2014

An attorney sues for fees, claiming breach of contract and unjust enrichment.

Practice point:  A claim for unjust enrichment does not lie where it duplicates or replaces a conventional contract claimSo, the attorney cannot seek damages for unjust enrichment where, as here, the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties. However, where there is a bona fide dispute as to the existence of a contract or the application of a contract in a dispute, a plaintiff may proceed on the theories of both quasi contract and breach of contract.

Student note:  There can be no quasi-contract claim against a third-party non-signatory to a contract that covers the subject matter of the claim.

Case:  Scarola Ellis LLP v. Padeh, NY Slip Op 02847 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A divorce action, and a referee's overstepping his bounds.

Tuesday, April 29, 2014

A motion to dismiss for failure to state a cause of action.

Practice point:  The motion was denied because, among other things, the complaint's allegations which assert a claim for damages as a result of the defendants' alleged breach of an agreement to pay an earned commission clearly fit within a cognizable legal theory. In addition, the question of whether the plaintiff will ultimately establish its entitlement to an earned commission is not a proper consideration in determining the motion.

Student note:  On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Case:  Atlantic Capital Realty v. Cayuga Capital Mgt., LLC, NY 02733 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An attorney sues for fees, claiming breach of contract and unjust enrichment.

Monday, April 28, 2014

Statute of limitations in a toxic exposure action.

Practice point:  The statute of limitations began to run when plaintiff discovered the primary condition on which his claim is based, and not when he discovered the causation connection to the toxic substance.

Student note: Plaintiff's uncertified medical records may be considered since plaintiff does not dispute their accuracy or veracity, pursuant to CPLR 4518[c]. He only disputes the inferences to be drawn from the records as to the date on which his condition was sufficiently apparent to start the running of the limitations period.

Case:  Ward v. Lincoln Elec. Co., NY Slip Op 02668 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A motion to dismiss for failure to state a cause of action.

Friday, April 25, 2014

Hit while crossing within the crosswalk.

Practice point:  Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability by submitting an affidavit stating that defendants' yellow cab struck him as he was crossing within a crosswalk, with the pedestrian light in his favor, and after he had looked for oncoming traffic. In opposing, defendants failed to raise a triable issue of fact. Defendant-driver himself admitted in his affidavit that both he and plaintiff spoke with the police officer, and his statement to the officer is admissible as an admission against interest.

Student note: The court determined that defendant-driver's affidavit containing a different version of the facts seems to have been submitted to avoid the consequences of his prior admission to the police officer, and so it iis insufficient to defeat plaintiff's motion.

Case: Garzon-Victoria v. Okolo, NY Slip Op 02667 (1st Dept. 2014)

Here is the decision.

Monday's issue: Statue of limitations in a toxic exposure action.

Thursday, April 24, 2014

An owner's duty and slippery floors.

Practice point:  A property owner's duty to maintain the premises so that they are reasonably safe extends to any hazardous condition about which the owner has actual or constructive notice. Except where the landowner created the defective condition, thereby affording actual notice, it is the responsibility of the injured party to establish that the condition was either known to the owner or had existed for a sufficient period of time to have allowed the owner to discover and correct it.

Student note:  Proof that a floor is inherently slippery, standing alone, is insufficient to support a cause of action for negligence.

Case: Caicedo v. Sanchez, NY Slip Op 02663 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Hit while crossing within the crosswalk.

Wednesday, April 23, 2014

Causes of action for quantum meruit and unjust enrichment.

Practice point:  Under the doctrine of quantum meruit, the performance and acceptance of services gives rise to the inference of an implied contract to pay for the reasonable value of such services.

 A person may be unjustly enriched not only where he or she receives money or property, but also where he or she otherwise receives a benefit. Such a benefit may be conferred where the person's debt is satisfied or where she is otherwise saved expense or loss.

Student note: To state a cause of action for quantum meruit, plaintiff must allege (l) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services. 

To state a cause of action for unjust enrichment, a plaintiff must demonstrate that (1) defendant was enriched, (2) at plaintiff's expense, and (3) that it is against equity and good conscience to permit defendant to retain that which is sought to be recovered.

Case:  Farina v. Bastianich, NY Slip Op02661 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: An owner's duty and slippery floors.

Tuesday, April 22, 2014

A summary judgment motion in a medical malpractice motion.

Practice point:  On the motion, the defendant-physician must make a prima facie showing that there was no departure from good and accepted medical practice, or that the plaintiff was not injured thereby.  On such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut, but only as to those elements on which the defendant met its burden..

Here, the Appellate Division found that the Supreme Court correctly concluded, the defendants had made the requisite showing, shifting the burden to the plaintiff, who relied on the affirmations of two physicians, one board-certified in internal medicine and nephrology, and the other board-certified in diagnostic, interventional, and vascular radiology. The Appellate Division  agreed with the Supreme Court's determination that these affirmations consisted of conclusory and unsupported allegations, that they failed to address the salient issues concerning the defendants' alleged departures from accepted medical practice, and that they failed to respond to relevant issues raised by the defendants' experts. While one of the plaintiff's experts concluded that certain of the decedent's symptoms were consistent with nephrotoxicity resulting from the use of intravenous contrast in the procedures, both affirmations were speculative in concluding that the decedent's condition was caused by the defendants' actions in performing the second angiogram. Moreover, the plaintiff's experts failed to differentiate between and among the acts and omissions of the various defendants. Accordingly, these affirmations were insufficient to raise a triable issue of fact.

Student note: Because the cause of action to recover damages for wrongful death and the derivative cause of action were both premised on the defendants' alleged malpractice, the same conclusion applies to these causes of action.

Case:  Ahmed v. Pannone, NY Slip Op 02552 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Causes of action for quantum meruit and unjust enrichment.

Monday, April 21, 2014

Transfer of assets and Medicaid ineligibility.

Practice point:  An individual will not be ineligible for Medicaid as a result of a transfer of assets if it is determined that the denial of eligibility will result in an undue hardship. An undue hardship occurs where the institutionalized individual is otherwise eligible for Medicaid, is unable to obtain appropriate medical care without the provision of Medicaid, and is unable to have the transferred assets returned, pursuant to18 NYCRR 360-4.4.

Student note:  In reviewing a Medicaid eligibility determination made after a fair hearing, the court must review the record, as a whole, to determine if the agency's decisions are supported by substantial evidence and are not affected by an error of law. "Substantial evidence" is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.

Case: Matter of Tarrytown Hall Care Ctr. v. McGuire, NY Slip Op 02600 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A summary judgment motion in a medical malpractice action.

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.

Wednesday, April 9, 2014

Allegations of improper increased mortgage payments.

Practice point:  The Appellate Division found that plaintiff's allegations of improper increased mortgage payments and improper notices of such increases were contradicted by provisions in the loan documents.  The motion court correctly found that plaintiff had failed to allege that his next mortgage payments of the minimum amount authorized under the loan documents would not have triggered defendants' right to increase his monthly payment obligations; his assertion that he had not triggered such right at the time of the notices begged the question. The loan documents lacked any provision imposing on defendants a duty to modify the notes or negotiate a workout, and, pursuant to the covenant of good faith, such terms cannot be added.

Student note:  The Appellate Division further found that plaintiff's cause of action for violation of General Business Law § 349 was untimely, as it accrued upon defendants' first notice of mortgage payment increases, more than three years before the service of the pleadings in this action, pursuant to CPLR 214.

Case:  Brown v. Deutsche Bank Natl. Trust Co., NY Slip Op 02336 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Disqualifying an attorney.

Tuesday, April 8, 2014

An untimely appeal.

Practice point:  Defendants' appeal from the motion court's order was untimely since their notice of appeal was filed months after the order was served on them with notice of entry, pursuant to CPLR 5513. Plaintiffs properly served notice of entry upon defendants' former counsel, who was then counsel of record, and counsel, in turn, served defendants with a copy of the order with notice of entry, and filed proof of service, in compliance with the motion court's order.

 Student note:  Defendants' denials of receipt of the certified mail packages, which were returned marked "Refused," is insufficient to rebut the showing of service.

Case: Campion A. Platt Architect, P.C. v. Lenz, NY Slip Op 02332 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Allegations of improper increased mortgage payments.

Monday, April 7, 2014

A jury's inconsistent verdict.

Practice point:  On appeal, defendant asserted that the jury's answers to the interrogatories were inconsistent and the trial court erred by failing to resubmit the verdict or, alternatively, order a new trial, pursuant to CPLR 4111[c], and the Appellate Division agreed.

As the verdict was inconsistent, pursuant to CPLR 4111(c), the court was obligated to either resubmit the interrogatories to the jury or order a new trial. The trial court improperly speculated as to the jury's thought process in attempting to reconcile the jury's answers with the evidence, based upon a theory that was not part of the jury's findings.

Student note:   Even though the parties focus their arguments on appeal on the issue of whether the verdict was a special or general verdict, the Appellate Division found that such a determination is unnecessary.  While CPLR 4111(c) only considers a new trial when the jury's answers to interrogatories are accompanied by a general verdict and there is an internal inconsistency, there is no reason why a new trial cannot be an available remedy where the jury has rendered a special verdict. In fact, when a verdict is inconsistent and the jury has been discharged, a new trial is the most appropriate remedy.

Case:  Bellinson Law, LLC v Iannucci, NY Slip Op 02219 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: An untimely appeal.

Friday, April 4, 2014

A municipality's liability, and denial of a motion to renew.

Practice point:  Where a municipality has adopted a prior written notice law, it cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies. Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it.

Here, in the bill of particulars, the plaintiff alleged that the City affirmatively created a dangerous condition by the manner in which it piled up snow and ice at the location of the accident. The City established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of a snow mound or icy condition in the area in which the plaintiff fell, and that it did not, merely by plowing the roadway, create a dangerous condition through an affirmative act of negligence.

Student note: The purportedly new facts submitted by the plaintiff on that branch of the motion which was for leave to renew would not have changed the prior determination, and so renewal was denied, pursuant to CPLR 2221[e].

Case:  Moncrieffe v. City of White Plains, NY Slip Op 02017 (2d Dept. 2014).

Here is the decision.

Monday's issue:  A jury's inconsistent verdict.

Thursday, April 3, 2014

The common-interest privilege.

Practice point:  A bona fide communication made upon any subject matter in which the communicating party has an interest, or in reference to which that party has a duty, is privileged if made to a person having a corresponding interest or duty.  This privilegre can be overcome by a showing of malice The Appellate Division found that the allegations of malice as set forth in the complaint and in the plaintiff's affidavit preclude dismissal for failure to state a cause of action, pursuant to CPLR 3211[a][7].

Student note:  On a 3211(a)(7) motion, a plaintiff has no obligation to show evidentiary facts to support the allegations of malice.

Case:  Colantonio v. Mercy Med. Ctr., NY Slip Op 02009 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A municipality's liability, and denial of a motion to renew.

Wednesday, April 2, 2014

An out-of-possession landlord's liability for a fall through an open trap door.

Practice point:  The Appellate Division found that the out-of-possession landlord was entitled to summary judgment where the plaintiff fell through an open trap door in the tenant's store. Even though the landlord reserved the right to reenter the leased premises for purposes of inspection and repair, the properly functioning trap door that was left open by someone within the tenant's control did not constitute a significant structural or design defect, and plaintiff failed to show a violation of a specific statutory provision, as required to impose liability upon the out-of-possession landlord.

Student note:  A general non-specific safety provision such as Administrative Code of City of NY § 28-301.1 is insufficient to impose liability on an out-of-possession owner.

Case:  Yuying Qiu v J & J Deli Corp., NY Slip Op 02150 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: The common-interest privilege.

Tuesday, April 1, 2014

Vacating a default.

Practice point:  To vacate their default in opposing the plaintiffs' motion for summary judgment on the issue of liability, the defendants were required to demonstrate a reasonable excuse for their default and a potentially meritorious opposition to that motion, pursuant to CPLR 5015[a][1].

Student note: While the decision whether to vacate a default judgment rests within the sound discretion of the trial court, a disposition on the merits is favored.

Case:  Bardes v. Pintado, NY Slip Op 02003 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  An out-of-possession landlord's liability for a fall through an open trap door.