Thursday, July 31, 2014

A motion to dismiss for failure to prosecute is denied.

Practice point:  On receipt of plaintiffs' 90-day notice, defendants did not file a note of issue within 90 days.. However, plaintiffs refused certain requests to schedule a continued deposition of the injured defendant, and, after the notice was served, both parties demonstrated an intent to proceed with discovery. Further, there is no evidence that plaintiffs were prejudiced by the minimal delay involved in this case, nor is there a pattern of persistent neglect and delay in prosecuting the action. Neither is there any indication of an intent to abandon the action. Under these circumstances, the Appellate Division affirmed the Supreme Court's exercise of its discretion in excusing defendants' failure to meet the deadline for filing the note of issue.

Student note:  CPLR 3216 is extremely forgiving in that it does not require, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed. While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a meritorious cause of action, such a dual showing is not strictly necessary to avoid dismissal.

Case:  Altman v. Donnenfeld, NY Slip Op 05402 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An injured firefighter's suit sounding in negligence.

Wednesday, July 30, 2014

An untimely cross-motion for summary judgment.

Practice point:  The Appellate determined that the Supreme Court improvidently exercised its discretion in denying as untimely plaintiff's cross-motion for summary judgment. While the motion was made more than 120 days after the note of issue was filed and, therefore, was facially untimely, an untimely motion for summary judgment may be considered by the court where, as here, a timely motion was made on nearly identical grounds. The rationale is that the issues raised by the untimely motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause, pursuant to CPLR 3212 [a], to review the merits of the untimely motion.

Student note:  The court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party.

Case:  Wernicki v. Knipper, NY Slip Op 05324 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A motion to dismiss for failure to prosecute is denied.

Tuesday, July 29, 2014

Denial of a motion to dismiss on a general release and waiver.

Practice point:  The defendants presented proof, in the form of the general release and the waiver, demonstrating their prima facie entitlement to judgment as a matter of law dismissing the complaint and on their counterclaim for a judgment declaring that the mechanic's liens against their property are null and void. However, in opposition, the plaintiffs submitted proof raising triable issues of fact regarding, among other things, whether the parties' intentions were reflected by the terms of the general release and the waiver.

Student note:  Generally, a valid release that is clear and unambiguous on its face constitutes a complete bar to an action on a claim which is the subject of the release absent fraudulent inducement, fraudulent concealment, misrepresentation, mutual mistake or duress.

Case: Patti Constr. Corp. v 111-16 Atl. Ave. Realty Corp., NY Slip Op 05311 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An untimely cross-motion for summary judgment.

Monday, July 28, 2014

Return of down-payment on contract for sale of real property.

Practice point:  To prevail on the cause of action, the plaintiff must establish that the defendant breached or repudiated the contract and that the plaintiff was ready, willing, and able to perform on the closing date. The rule is that, where the vendor's title is incurably defective, a vendee can recover the money paid on the contract from a defaulting vendor, without a showing of tender or even of willingness and ability to perform, but a tender and demand are required to put the vendor in default where title could be cleared without difficulty in a reasonable time. In that latter situation, the seller is entitled to a reasonable time to make the title good. When the vendor is on notice of the defect prior to the scheduled closing date and does nothing to correct it until after the closing date, the purchaser need not tender performance,  as such tender would be meaningless.

Student note:  Where a seller seeks to hold a purchaser in breach of contract, the seller must establish that he or she  was ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for its failure to close.

Case:  Martocci v. Schneider, NY Slip Op 05308 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Denial of a motion to dismiss on a general release and waiver.

Friday, July 25, 2014

A fall on the ice, out of season but actionable.

Practice point:  Defendant failed to establish that it lacked constructive notice of a large layer of ice which allegedly caused the plaintiff to slip and fall in the defendant's parking lot.  At a hearing held pursuant to General Municipal Law § 50-h, and at her deposition, the plaintiff testified that she had seen the ice condition the evening before the accident when she parked her car in the lot. In support of its motion, the defendant failed to establish that ice was not present when it last inspected or cleaned the area. In addition, the defendant failed to eliminate all triable issues of fact as to whether the large layer of ice upon which the plaintiff allegedly slipped was created by the defendant's snow removal efforts in the days prior to the accident.

Student note:  A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of plaintiff's fall.

Case:  Dhu v. New York City Hous. Auth., NY Slip Op 05300 (2d Dept. 2014) 

Here is the decision.

Monday's issue: Return of down-payment on contract for sale of real property.

Thursday, July 24, 2014

The City's Human Rights Law and an allegation of discrimination based on disability.

Practice point:  Here, the defendant met its burden of demonstrating entitlement to judgment as a matter of law by offering evidence that the plaintiff, at the time of his discharge, was not suffering from a disability that would require an accommodation.
In any event, said the Appellate Division, there was a legitimate, nondiscriminatory
reason for his termination of employment. In opposition, the plaintiff failed to raise a
triable issue of fact.

Student note:  The New York City Human Rights Law prohibits an employer from discriminating against an individual who is disabled, pursuant to Administrative Code
of City  of NY § 8-107[15]).

Case:  Caban v. New York Methodist Hosp., NY Slip Op 05292 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A fall on the ice, out of season but actionable.

Wednesday, July 23, 2014

Defamation and the single publication rule.

Practice point:  Under the rule, the publication of a defamatory statement in a single issue of a newspaper or magazine, although widely circulated and distributed, constitutes one publication, which gives rise to one cause of action, and the statute of limitations runs from the date of that publication.

An exception to the rule has been applied when the following factors are present:  the subsequent publication is intended to and actually reaches a new audience; the second publication is made on an occasion distinct from the initial one; the republished statement has been modified in form or in content; and the defendant has control over the decision to republish. So, repetition of a defamatory statement in a later edition of a book, magazine or newspaper may give rise to a new cause of action.

Student note:  The rule applies to publications on the Internet, and so continuous access to an article posted via hyperlinks to a website is not a republication.

Case:  Martin v. Daily News L.P., NY Slip Op 05369 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The City's Human Rights Law and an allegation of discrimination based on disability.

Tuesday, July 22, 2014

Sua sponte dismissal undone.

The Appellate Division determined that the Supreme Court erred when, sua sponte,  it directed the dismissal of the complaint and the cancellation of the notice of pendency filed against the subject property for lack of standing. A party's lack of standing does not constitute a jurisdictional defect,
 and does not warrant the court's sua sponte dismissal of a complaint

Student note:  A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal.

Case:  Bank of N.Y. v. Mulligan, NY Slip Op 05291 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Defamation and the single publication rule.

Monday, July 21, 2014

A motion to dismiss pursuant to 3211(a)(7).

Practice point:  In considering the motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action.

If the movant relies on evidence beyond the four corners of the complaint, the motion must be denied absent a showing that there is a material fact as claimed by the pleader is not a fact at all,l and unless there is no significant dispute regarding it.

Student note:  On the motion, the statutory standard is whether the plaintiff has pled a cause of action. Period.

Case:  J. A. Lee Elec., Inc. v City of New York, NY Slip Op 05159 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Sua sponte dismissal undone.

Friday, July 18, 2014

A subpoena to obtain discovery from a non-party.

Practice point:  Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the circumstances or reasons requiring disclosure. The Court of Appeals has recently held that disclosure from a nonparty requires no more than a showing that the requested information is "material and necessary," that is, relevant to the prosecution or defense of an action. However, the subpoenaing party must sufficiently state the circumstances or reasons underlying the subpoena, either on its face or in an accompanying notice.  In moving to quash, the witness must establish either that the discovery sought is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious. On this showing, the subpoenaing party must then establish that the discovery sought is material and necessary to the prosecution or defense of an action.

Student note: CPLR 3101(a) is to be liberally construed to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay.

Case:  Ferolito v Arizona Beverages USA, LLC, NY Slip Op 05153 (2d Dept. 2014)

Here is the decision.

Monday's issue: A motion to dismiss pursuant to 3211(a)(7).

Thursday, July 17, 2014

Legal malpractice.

Practice point:  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 the plaintiff actual and ascertainable damages.

For summary judgment, a defendant must demonstrate that the plaintiff is unable to prove at least one of the essential elements of the cause of action.

Here, the alleged malpractice relates to the sufficiency of the order to show cause and supporting papers prepared by the defendants and submitted on behalf of the plaintiffs in the personal injury action, pursuant to which they moved to vacate their default in the personal injury action. A motion to vacate a default by a plaintiff in appearing for trial requires the demonstration of a reasonable excuse and an affidavit setting forth the merits of the cause of action, pursuant to CPLR 5015.

The defendants established, prima facie, that the plaintiffs had no reasonable excuse for their default in appearing for jury selection in the personal injury action, thereby establishing that the alleged inadequecy of the motion papers that they prepared on the plaintiffs' behalf was not the proximate cause of the plaintiffs' damages. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether they had a reasonable excuse for their default that could have been communicated to the defendants for inclusion in the papers submitted with the motion to vacate.

Student note:  An attorney's conduct and performance in connection with a motion to vacate a default may constitute legal malpractice.

Case:  DiGiacomo v. Langella, NY Slip Op 05150 (2d Dept. 20145)

Here is the decision.

Tomorrow's issue: A subpoena to obtain discovery from a non-party.

Wednesday, July 16, 2014

Spoilation, the law, and videotape.

Practice point:  One week after plaintiff's slip-and-fall accident on defendants' premises, plaintiff's counsel sent a notice to defendant "to preserve any and all video recordings/surveillance tapes/still photos of any nature that depict the subject slip and fall accident" on the date and time in question. This notice was received by defendants' employee in charge of the recordings. After reviewing the tapes from all of the cameras, the employee preserved an 84-second portion of tape from one camera that depicted plaintiff's accident, starting from one minute preceding her fall. She downloaded this clip onto a CD-ROM and forwarded a copy to defendant's insurance carrier.

The employee testified that defendants' standard procedure regarding surveillance tapes was to send a copy of video footage of any accident to its insurance carrier, and that, after a search of all cameras, the 84-second portion of the one camera tape was found to be the only footage depicting the accident. She further stated that the insurance carrier never told her what to send it regarding an accident and never asked her to send anything more than the short clip of the accident. Additionally, she testified that the computer system in use at that time automatically erased all footage every 21 days due to limited storage capacity. She also stated that the system later broke and was replaced. However, she could not remember when the replacement occurred, and stated that the old system had been discarded.

Six weeks after the first request, counsel expanded his demand to six hours of footage leading up to the accident, for all 32 cameras in the store.

After discovery, defendants moved for summary judgment, arguing that they did not create or have actual notice of the condition that allegedly caused plaintiff to fall. Plaintiff opposed the motion and cross-moved to strike defendants' answer for withholding and destroying relevant video footage, or, in the alternative, for an order directing that the issue of notice be resolved against defendants.

The motion court found that defendants met their prima facie burden to establish that they did not create or have actual notice of the condition upon which plaintiff allegedly fell and that plaintiff failed to raise a triable issue of fact as to constructive notice.

Although not required to do so in light of its ruling on the summary judgment motion, the court addressed plaintiff's cross motion to strike defendants' answer for spoilation of evidence. The court found that the destruction of the original surveillance video was not willful or contumacious or in violation of a court order. The court accepted the employee's explanation regarding the loss of the tape, finding no reason to attribute bad faith to defendants. It also rejected plaintiff's contention that defendants should have preserved six hours of footage from all 32 store cameras.

The Appellate Division found that the motion court properly exercised its discretion in denying plaintiff's motion for spoliation sanctions. Plaintiff's initial demand for preservation of video tapes was limited to those that "depict the subject slip and fall accident that took place on the above referenced date, time and location."  The portion of the tape that was preserved complied with this demand.

The Appellate Division noted that a property owner's receipt of a notice to preserve records triggers certain obligations, but there are limits to the extent of those obligations.While a plaintiff is entitled to inspect tapes to determine whether the area of an accident is depicted and is not compelled to accept defendant's self-serving statement concerning the contents of the destroyed tapes, this does not trigger a defendant's obligation to preserve hours of tapes indefinitely each time an incident occurs on its premises in anticipation of a plaintiff's request for them. That obligation would impose an unreasonable burden on property owners and lessees.

Student note:  On a motion for spoliation sanctions, the movant must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a culpable state of mind, which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party's claim or defense.  In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness. The burden is on the party seeking sanctions to make the requisite showing.

Case:  Duluc v AC&L Food Corp., NY Slip Op 05243 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Legal malpractice.

Tuesday, July 15, 2014

Service, and the due diligence requirement of 308(4).

Practice point:  Service of process pursuant to the affix-and-mail provisions of CPLR 308(4) is only permitted where service by personal delivery under CPLR 308(1) or by delivery to a person of suitable age and discretion and a subsequent mailing pursuant to CPLR 308(2) cannot be made with due diligence. Satisfying the due diligence requirement entails a showing that the process server made genuine inquiries about the defendant's whereabouts and place of employmentt. Here, the process server's testimony that he inquired as to the defendant's whereabouts from a neighbor was not credible, as he was unable to provide any description at all of the neighbor, not even the gender. The affidavit of service referred to a "person spoken to," but provided no description, although there were spaces to insert the person's gender, skin color, hair color, approximate age, height, and weight.

Student note:  Where the defendant's only participation in the action is the submission of a motion to vacate a default judgment for lack of personal jurisdiction, the defense of lack of personal jurisdiction is not waived.

Case:  Cadlerock Joint Venture, L.P. v. Kierstedt, NY Slip Op 05147 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Spoilation, the law, and videotape.

Monday, July 14, 2014

CPLR 3216.

Practice point:  After being served with a 90-day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day period. Here, the plaintiff failed to do either within the 90-day period. Therefore, in order to excuse his default, the plaintiff was required to demonstrate a justifiable excuse for his failure to timely file the note of issue or move to either vacate the demand or extend the 90-day period, as well as a potentially meritorious cause of action. The determination of what constitutes a reasonable excuse lies within the discretion of the motion court.

Student note:  CPLR 3216 is extremely forgiving, in that it does not require, but merely authorizes, the court to dismiss an action based on the plaintiff's unreasonable neglect to proceed.  In fact, depending on the circumstances, a plaintiff is not always required to establish both a justifiable excuse and a potentially meritorious cause of action to avoid such a dismissal.

Case:  Belson v Dix Hills A.C., Inc., NY Slip Op 05144 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Service, and the due diligence requirement of 308(4).

Friday, July 11, 2014

An oral agreement as to an interest in a co-op.

Practice point:  Plaintiff alleges that he and defendant orally agreed that defendant would reside in plaintiff's cooperative apartment, rent-free, but that he would pay the maintenance, assessments, and other related charges. Plaintiff also alleges that the agreement was that defendant would vacate the premises at plaimtiff's request, and that the plaintiff would remain "the true, legal and equitable owner."  Plaintiff further alleges that, for one dollar, he let defendant become a joint tenant and coop shareholder, and had defendant so listed on the share certificate and proprietary lease, as an accommodation to defendant, since the coop board objected to open-ended occupancy by a non-owner.

Defendant denies the agreement, and alleges that he received an interest in the apartment in consideration for the services he performed for plaintiff's medical practice. Defendant moved for summary judgment dismissing the complaint on statutes of frauds and limitations grounds.

In opposition, plaintiff argues that he has partly performed the oral agreement and that, if the agreement is not enforced, injustice will result, namely, defendant's receiving a half-interest in exchange for the one dollar's consideration.

The Appellate Division found issues of fact as to whether plaintiff's performance of the alleged agreement is unequivocally referable to the agreement, including whether plaintiff gave defendant an interest in the apartment in consideration for services that defendant performed for him, and whether the written assignment of the lease was legitimate.

Student note:  With respect to the statute of limitations, there are issues of fact as to whether defendant's possession of the apartment was adverse. As to the trespass cause of action, the applicable statute of limitations does not commence while the trespass is continuous and ongoing.

Case:  Lauersen v. Antonopolous, NY Slip Op 05022 (1st Dept. 2014)

Here is the decision.

Monday's issue:  CPLR 3216.

Thursday, July 10, 2014

A motion for leave to serve and file an amended notice of claim is denied.

Practice point:  The Appellate Division found that the Supreme Court improvidently exercised its discretion in granting the plaintiff's cross motion for leave to serve and file an amended notice of claim. The proposed amendments included substantive changes to the facts, adding that the plaintiff was injured after he climbed a ladder to go over a fence, changing the situs of the accident, and identifying the plaintiff as a worker at the site. The proposed amendments to the notice of claim also added a theory of liability under the Labor Law. Such changes are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6). Granting leave would prejudice the defendant by depriving it of the opportunity to promptly and meaningfully investigate the claim.

Student note:  Amendments to notices of claim are appropriate only to correct good-faith and nonprejudicial technical mistakes, defects, or omissions, not substantive changes in the theory of liability.

Case:  Ahmed v. New York City Housing Authority, NY Slip Op 04883 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An oral agreement as to an interest in a co-op.

Wednesday, July 9, 2014

Struck by a bicycle, and the complaint is dismissed.

Practice point:  The Appellate Division reversed the trial court and dismissed the complaint in in this action where plaintiff was injured when a child, riding a bicycle, struck her from behind as she walked on an interior walkway of defendant's complex. Defendant submitted the testimony of a member of its private security force, who stated that defendant employed five to seven security guards during normal business hours. He stated that people traversed the property, and some "occasionally" rode bicycles, but this happened "rarely." Nevertheless, defendant had a rule against riding bicycles in the area of the incident, and there were a number of signs posting this rule. Defendant also had surveillance cameras on the interior and exterior of the property, and the security officer further stated that when someone was found riding a bicycle, either the bicycle would be confiscated, a summons would be issued, or a warning would be issued.

The Appellate Division found that the defendant had demonstrated that it provided the requisite minimal precautions to protect people from the foreseeable harm of bicycle riders, and there was nothing else that it reasonably could have done.

Student note:  Plaintiff failed to submit opposition to the motion, and the arguments she has set forth in her appellate brief are unpreserved. In any event, the Appellate Division determined that plaintiff's arguments do not present triable issues of fact that would warrant the denial of the defendant's motion.

Case:  DeJesus v. Parkchester S. Condominium Inc., NY Slip Op 05016 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A motion for leave to serve and file an amended notice of claim is denied.

Tuesday, July 8, 2014

Labor Law § 240(1).

Practice point:  Labor Law § 240(1) imposes on owners a nondelegable duty to protect workers from elevation-related risks at covered work-sites. In order for the statute to apply, the worker must be working on a building or structure and must be performing a covered task, such as altering or demolishing.

Student note:  The injured workers's negligence, if any, does not change the analysis.

Case:  Kharie v. South Shore Record Mgt., Inc., NY Slip Op 04738 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Struck by a bicycle, and the complaint is dismissed.

Monday, July 7, 2014

A claim for punitive damages is denied.

Practice point:  The Appellate Division found that the complaint alleges in conclusory and conjectural fashion that "defendants were grossly, willfully and wantonly negligent and acted with reckless indifference to the health and safety of plaintiff."  Such legal conclusions are insufficient, as the complaint does not allege any facts to demonstrate that the defendant  engaged in conduct which rose to the high level of moral culpability to support a claim for punitive damages.

Student note:  A plaintiff cannot maintain a punitive damages demand on the hope that discovery might provide a basis for it.  However, should discovery reveal facts supporting a claim for punitive damages, the plaintiff could move for leave to replead.

Case:  Barnes v. Hodge, NY Slip Op 04851 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Labor Law § 240(1).

Thursday, July 3, 2014

Qualified privilege.

Practice point:  A qualified privilege extends to any communication made by one person to another upon a subject in which both have an interest. Where a plaintiff can demonstrate that the communication made by the defendant was not made in good faith but was motivated solely by malice, the protection provided by the qualified privilege does not apply.

Student note:  Mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion, are insufficient to defeat the claim of the privilege.

Case:  Bernacchi v. County of Suffolk, NY Slip Op 04725 (2d Dept. 2014)

Here is the decision.

Monday's issue: A claim for punitive damages is denied.


Wednesday, July 2, 2014

The traverse hearing officer's determination is reversed.

 Practice point:  Defendants' witness at the traverse hearing worked in an office at which plaintiff's law firm had previously served process without challenge. This was known to the process server, who was a lawyer at the firm. A substantial responsibility held by defendants' witness was to accept service of subpoenas served on defendants. The process server testified that he handed the summons and complaint to defendants' witness after having asked several people in defendants' office where he should go to serve the papers, and having been directed towards the area where her cubicle was located. Defendants' witness could not recall  whether she ever had an encounter with the process server, and neither did she deny it.

The Appellate Division determined that, viewed objectively, these circumstances compel the conclusion that service on defendants was calculated to give fair notice of the claims against them. The Appellate Division noted that the hearing court did not appear to base its conclusion on any credibility determinations. Instead, it found that both defendants' witness and the process server were inexperienced with service of process, leading to their mutual confusion. The Appellate Division found this to be an insufficient basis to dismiss the complaint, and it was reinstated.

 Student note:  In evaluating whether service is to be sustained, the circumstances of the particular case must be weighed. In addition, CPLR 311, pursuant to which plaintiff purported to make service, is to be liberally construed in determining whether service was made on a corporation by delivering the summons to one of the persons delineated in the statute.

Case:  Wells v. Continuum Health Partners, Inc., NY Slip Op 04850 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Qualified privilege.

Tuesday, July 1, 2014

Lack of subject matter jurisdiction in a Human Rights Law claim.

Practice point:  The Appellate Division determined that, because the alleged conduct occurred while plaintiff was physically situated outside of New York, none of her concrete allegations of harassing behavior or other discriminatory conduct had the impact  plaintiff in New York required to support claims under the State and City Human Rights Laws. Plaintiff's Human Rights Law claims were dismissed for lack of subject matter jurisdiction, since the statutes do not apply to the conduct at issue, pursuant to CPLR 3211[a][2]

Student note:  The Appellate Division rejected plaintiff's argument that, because she filed New York State nonresident income tax returns and paid income taxes here, she is entitled to the protections, benefits and values of New York government, including the State and City Human Rights Laws. Whether New York courts have subject matter jurisdiction over a nonresident plaintiff's claims under those statutes turns primarily on her physical location at the time of the alleged discriminatory acts, and not on her taxpayer status.

Case:  Benham v. eCommission Solutions, LLC, NY Slip Op 04695 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The traverse hearing officer's determination is reversed.