Wednesday, June 28, 2017

Standing to sue a bank for the return of a check.

The Appellate Division affirmed dismissal of this action where plaintiff asserts that he and a friend went together to his friend's bank, because he wanted to cash a check, and, due to his immigration status, he had no identification. The two signed their names in front of the teller, before sliding the check under the teller window, with a deposit slip that instructed to clear the funds into the friend's account. The bank rejected the deposit, closed the friend's account, and did not issue a replacement check until several months later.

Practice point:  When plaintiff endorsed and delivered the check to his friend, the friend became the holder of the check, pursuant to NY UCC 3-202[1]. Thus, only the friend was entitled to negotiate the check or to enforce payment in his own name, pursuant to NY UCC 3-301[1]. Plaintiff's argument that he, as payee of the check, is entitled to enforce its return or payment is unavailing. Plaintiff lacks standing to sue the bank for the return or proceeds of the check, because he is no longer the holder of the check.

Case:  Delight Bvunzawabaya v. JP Morgan Chase & Co., NY Slip Op 04891 (1st Dep't June 15, 2017)

Here is the decision.

Tomorrow's issue:  Medical malpractice and the continuous treatment doctrine.

Tuesday, June 27, 2017

CPLR 205(a).

CPLR § 205. Termination of action. (a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

Practice point:  An out-of-state action is not a "prior action" within the meaning of the statute.

Case in point:  Deadco Petroleum v. Trafigura AG, NY Slip Op 04887 (1st Dep't June 15, 2017)

Here is the decision.

Tomorrow's issue:  Standing to sue a bank for the return of a check.

Monday, June 26, 2017

A non-resident's consent to jurisdiction.

The Appellate Division reversed the motion court and dismissed the complaint in this action where the plaintiff alleges that he brokered a deal for the purchase of a company, and that the defendants agreed that, on entering into a purchase agreement, they would pay him a commission, but did not. The defendants moved  to dismiss pursuant to CPLR 3211(a)..

Practice point:   A non-resident's consent to jurisdiction for issues arising out of the purchase agreement does not constitute a consent with respect to plaintiff's claims for a commission.

Case in point:  Ausch v. Sutton, NY Slip Op 04813 (2d Dep't June 14, 2017)

Here is the decision.

Tomorrow's issue:  CPLR 205(a).

Friday, June 23, 2017

Failure to state a claim as an affirmative defense.

Practice point:  The Appellate Division stated the the motion court was not free to dismiss the affirmative defense of failure to state a claim, as failure to state a claim may be raised at any time, even if not pleaded, pursuant to CPLR 3211[e], and, therefore, is mere surplusage as an affirmative defense.

Case:  San-Dar Assoc. v. Fried, NY Slip Op 04884 (1st Dep't June 15, 2017)

Here is the decision.

Monday's issue:  A non-resident's consent to jurisdiction.

Thursday, June 22, 2017

Hearsay on a summary judgment motion.

Practice point:  While hearsay may be considered in opposition to a motion for summary judgment, it is insufficient to raise a triable issue of fact where it is the only evidence upon which the opposition to the motion is predicated.

Case:  Alpha Invs., LLC v. McGoldrick, NY Slip Op 04812 (2d Dep't June 14, 2017)

Here is the decision.

Tomorrow's issue:  Failure to state a claim as an affirmative defense.

Wednesday, June 21, 2017

Law of the case and sua sponte dismissal.

The Appellate Division reversed, and reinstated the complaint in this action where plaintiff, as administrator of the estate commenced a medical malpractice suit against, among others, defendant-physician. Defendant's motion for summary judgment was denied. The action was assigned to a different judge, and set for trial.  After jury selection, the complaint was dismissed insofar as asserted against other defendants, and, in light of the dismissal as to those defendants, the Supreme Court declared a mistrial, with jury selection to begin anew. After a second jury was selected, the court, sua sponte, directed a hearing, denominated as a Frye hearingat which the plaintiff's medical expert, was to testify in order to determine whether his opinion rendered in this case as to defendant was sufficiently reliable. Following the hearing, the court directed dismissal of the complaint insofar as asserted against defendant.

Practice point:  A Frye hearing is meant to determine whether an expert's opinion is based on principles that are sufficiently established to have gained general acceptance as reliable. Here, though, based on the court's questions and statements, the Appellate Division determined that the hearing's purpose was to revisit the determination made in the order denying defendant's motion for summary judgment insofar as asserted against her. In doing so, the court violated the doctrine of law of the case by disregarding the prior order, issued by a justice of coordinate jurisdiction, concluded that there were triable issues of fact as to whether defendant departed from accepted medical standards of care and whether such departures were a proximate cause of the decedent's injuries.

In addition, a court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal. Here, there were no extraordinary circumstances warranting the sua sponte dismissal of the complaint insofar as asserted against defendant.

Case in point:  Aguilar v. Feygin, NY Slip 04811 (2d Dep't June 14, 2017)

Here is the deision.

Tomorrow's issue:  Hearsay on a summary judgment motion.

Tuesday, June 20, 2017

Respondeat superior.

The Appellate Division reversed the motion and dismissed the complaint as against the employer-defendant, in this action where plaintiff was severely injured when, while standing on the sidewalk, a taxicab hopped the curb and struck her. Just before the accident, the taxi driver had an altercation with a bike messenger, who allegedly banged his hands and fists against the taxi.  Allegedly, the taxi driver then steered his vehicle into the messenger, striking plaintiff in the process. Plaintiff alleges that the messenger's employer is vicariously liable for the messenger, who incited the altercation.

While the determination of whether an employee's act is within the scope of his employment is heavily dependent on factual considerations, the complaint failed to state a cause of action the employer on the theory of respondeat superior. Accepting the allegation that the messenger was an employee at the time of the accident, his alleged conduct cannot be reasonably viewed as falling within the scope of his employment. Although the precipitating dispute might have arisen while the messenger was acting in the course of his employment in making deliveries, his alleged inciting of an altercation or provoking the taxicab driver's assault cannot reasonably be construed as part of his duties as a bike messenger, or as acting in furtherance of his employer's interests. The complaint does not allege that the employer condoned, instigated or authorized the messenger's actions.

Case:  Green v. Himon, NY Slip Op 04777 (1st Dep't June 13, 2017)

Here is the decision.

Tomorrow's issue:  Law of the case and sua sponte dismissal.

Monday, June 19, 2017

Applicability of the Workers' Compenstion Law.

Practice point:  Primary jurisdiction as to the applicability of the statute is vested in the Workers' Compensation Board., and where the availability of workers' compensation hinges on the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum to resolve the questions. Plaintiff has no choice but to litigate this issue before the Board, and the question of whether a person is an employee within the meaning of the statute is for the Board to determine in the first instance. The Board's findings are final and conclusive unless reversed on direct appeal, and are not subject to collateral attack in a plenary action. This is so even where, as here, the employer has filed a claim on the employee's behalf and the employee did not apply for or accept benefits.  Whether the employee or the employer first brings the injury to the Board's attention, the Board's finding that the injury is compensable is, until set aside, a final and conclusive determination which bars an action at law.

Case:  Aprile-Sci v. St. Raymond of Penyafort R.C. Church, NY Slip Op 04412 (2d Dep't June 7, 2017)

Here is the decision.

Monday's issue:  Respondeat superior.

Friday, June 16, 2017

A Labor Law § 241(6) claim.

Practice point:  The motion court properly exercised its discretion in granting plaintiffs' motion for leave to amend their bill of particulars, to allege violations of Industrial Code §§ 23-1.7(b)(1) and 23-4.2(h) in support of the Labor Law § 241(6) claim, since an amendment to allege a specific section of the Industrial Code is appropriately permitted, in the absence of unfair surprise or prejudice, even after a note of issue has been filed.

Labor Law § 241(6) imposes on owners a nondelegable duty to comply with specific safety regulations. Industrial Code § 23-1.7(b)(1) requires that "hazardous opening[s] into which a person may step or fall" must "be guarded by a substantial cover . . . or by a safety railing." Industrial Code § 23-4.2(h) requires that "[a]ny open excavation adjacent to a . . . street, . . . or other area lawfully frequented by any person shall be effectively guarded."

Case in point:  Gjeka v. Iron Horse Transp., Inc., NY Slip Op 04536 (1st Dep't June 8, 2017)

Here is the decision.

Monday's issue:  Applicability of the Workers' Compensation Law.

Thursday, June 15, 2017

An insufficient claim for an accounting.

Practice point:  In the absence of an allegation that plaintiffs demanded an accounting, the claim fails to state a cause of action.

Case in point:  New York Studios, Inc. v. Steiner Digital Studios, NY Slip Op 04397 (1st Dep't June 6, 2017)

Here is the decision. 

Tomorrow's issue: A Labor Law § 241(6) claim.

Wednesday, June 14, 2017

Leave to amend a pleading.

Practice point:  Leave to amend a pleading will be freely given in the absence of prejudice or surprise to the opposing party, pursuant to CPLR 3025[b].  The motion for leave will be be denied, however, where the proposed amendment is palpably insufficient or patently devoid of merit.Whether to grant such leave is within the motion court's discretion, the exercise of which will not be lightly disturbed by the Appellate Division.

Case in point:  APF Mgt. Co., LLC v. Munn, NY Slip Op 04411 (2d Dep't June 7, 2017)

Here is the decision.

Tomorrow's issue:   An insufficient claim for an accounting.

Tuesday, June 13, 2017

CPLR 3101(a).

Practice point:   The statute is liberally construed in order 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 and prolixity.  To compel a deposition, a defendant must show that the disclosure sought is material and necessary.  If a defendant is seeking disclosure from a nonparty witness, the defendant must provide notice of the circumstances or reasons why the disclosure is sought or required.

Case in point:  Alumil Fabrication, Inc. v. F.A. Alpine Window Mfg. Corp., NY Slip Op 04410 (2d Dep't June 7, 2017)

Here is the decision.

Tomorrow's issue:  Leave to amend a pleading.

Monday, June 12, 2017

Setting aside a jury verdict.

Practice point:  The verdict may not be set aside for legal insufficiency unless, based on the evidence, there is no valid line of reasoning and permissible inferences which could possibly lead rational jurors to the conclusion the jury reached.

Case in point:  Foley v. City of New York, NY Slip Op 04389 (1st Dep't June 6, 2017)

Here is the decision.

Tomorrow's issue:  CPLR 3101(a).

Friday, June 9, 2017

A common-law indemnification claim.

Practice point:  The claim may continue by parties who have been held vicariously liable for the party that actually caused the negligence that injured the plaintiff.

Case in point:  Chatham Towers, Inc. v. Castle Restoration & Constr., Inc., NY Slip Op 04368 (1st Dep't June 1, 2017)

Here is the decision.

Monday's issue:  Setting aside a jury verdict.

Thursday, June 8, 2017

A dismissed claim of fraud.

Practice point:  A plaintiff's general allegations that the defendant did not intend to perform on the contract are insufficient to support a cause of action sounding in fraud.

Case in point:  Mephisto Mgt., LLC v. Moon 170 Mercer, Inc., NY Slip Op 04365 (1st Dep't June 1, 2017)

Here is the decision.

Tomorrow's issue:  A common-law indemnification claim.

Wednesday, June 7, 2017

An allegation of default.

Practice point:  By their service of a motion to dismiss within the time extension granted by the court, defendants did not default.

Case in point:  Oparaji v. Yablon, NY Slip Op 04363 (1st Dep't June 1, 2017)

Here is the decision. 

Tomorrow's issue: A dismissed claim of fraud.

Tuesday, June 6, 2017

Pleading prior written notice of a sidewalk defect.

Practice point:  The Appellate Division affirmed dismissal where plaintiff alleged that, as she was exiting a bus, she tripped and fell over a pole sign's stump protruding from the sidewalk near the bus stop.  Plaintiff did not plead that the City received prior written notice of the sidewalk defect as required by Administrative Code of City of NY § 7-201(c)(2).

The City received a citizen complaint through 311 less than 15 days before plaintiff's accident, and repaired the condition a few days after the accident. Even if the complaint had been in writing, it could not constitute prior written notice for purposes of the statute, since it was received within the 15-day grace period provided by the statute for the City to make repairs after receiving notice.

Case in point:  Brown v. City of New York, NY Slip Op 04221 (1st Dep't May 30, 2017)

Here is the decision.

Tomorrow's issue:  An allegation of default.
     
 June 6, 1944

Monday, June 5, 2017

Misrepresentations, rescission, and fraudulent inducement.

Practice point:  While mere promissory statements as to what will be done in the future are not actionable, a promise actually was made with a preconceived and undisclosed intention of not performing it constitutes a misrepresentation of a material existing fact upon which an action for rescission may be based.  Such a misrepresentation is collateral to the agreement, and can be the basis of a fraudulent inducement claim.

Case in point:  White v. Davidson, NY Slip Op 04219 (1st Dep.t May 30, 2017)

Here is the decision.

Tomorrow's issue:  Pleading prior written notice of a sidewalk defect.

Friday, June 2, 2017

A valid defense of duress.

Practice point:  The defense is established upon the showing of a wrongful threat precluding the exercise of free will.  The threat of criminal prosecution is enough, as is the threat of deportation.

Case in point:  Yoon Jung Kim v. An, NY Slip Op 04201 (1st Dep't May 25, 2017)

Here is the decision.

Monday's issue:  Misrepresentations, rescission, and fraudulent inducement.

Thursday, June 1, 2017

A valid storm-in-progress defense.

Practice point:  A defendant is entitled to the defense where the evidence shows that the icy condition that allegedly forced plaintiff from the shoveled path developed during the snow storm that commenced shortly before the accident occurred.

Case in point:  Santiago v. New York City Hous. Auth., NY Slip Op 04053 (1st Dep't May 18, 2017)

Here is the decision.

Tomorrow's issue:  A valid defense of duress.

Wednesday, May 31, 2017

A defendant's failure to establish a prima facie case.

Practice:  A defendant cannot establish a prima facie case merely by pointing out gaps in the plaintiff's case.

Case in point:  Barone v. Elizabeth Firehouse, LLC, NY Slip Op 04052 (1st Dep't May 18, 2017)

Here is the decision.

Tomorrow's issue:  A valid storm-in-progress defense.

Tuesday, May 30, 2017

A contracting party's liability to a third party.

Practice point:  A party who enters into a contract to render services may be said to have assumed a duty of care, and be potentially liable in tort to a third party, where the contracting party launches a force or instrument of harm, such as by negligently creating or exacerbating a dangerous condition.

Case in point:  Brown v. Garda CL Atl., Inc., NY Slip Op 04049 (1st Dep't May 18, 2017)

Here is the decision.

Tomorrow's issue:  A defendant's failure to establish a prima facie case.

Friday, May 26, 2017

A misleveled elevator.

Practice point:  An elevator ordinarily does not mislevel in the absence of negligence, and where the misleveling is caused by an instrumentality or agency within the defendants' exclusive control and is not due to any voluntary action on a plaintiff's part, the case will be submitted to the jury on a theory of res ipsa loquitur.

When res ipsa applies, notice of a defect is inferred, and the plaintiff need not offer any evidence of actual or constructive notice. 

Case in point:  Rojas v. New York El. & Elec. Corp., NY Slip Op 04043 (1st Dep't May 18, 2017)

Here is the decision.

Tuesday's issue:  A contracting party's liability to a third party.

Thursday, May 25, 2017

CPLR 3215(c) and default judgments.

Practice point:  Pursuant to the statute, "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."

The single exception to the statute's mandatory language is that the failure to timely seek a default on an unanswered complaint or counterclaim may be excused for sufficient cause. Courts have interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious.

Case in point:  Bank of N.Y. v. Kushnir, NY Slip Op 03922 (2d Dep't May 17, 2017)

Here is the decision.

Tomorrow's issue:  A misleveled elevator.

Wednesday, May 24, 2017

A claim of unfair competition and misappropriation of confidential information.

Practice point:  To establish a cause of action for relief based on unfair competition, a plaintiff must demonstrate that the defendant wrongfully diverted the plaintiff's business to itself. To establish a cause of action based on misappropriation of confidential information, the plaintiff must show that the defendant solicited the plaintiff's customers where the customer list was a trade secret, or where the defendant engaged in wrongful conduct, such as physically taking or copying files or using confidential information.

Case in point:  Baldeo v. Majeed, NY Slip Op 03921 (2d Dep't May 19, 2017)

Here is the decision. 

Tomorrow's issue:  CPLR 3215(c) and default judgments.

Tuesday, May 23, 2017

The signatory's obligation to read the instrument, and a claim of notarial misconduct.

Practice point:  A party is obliged to read a document before signing it, and cannot avoid the document's effect by alleging ignorance of its contents.  A cause of action alleging that the plaintiff was induced to sign something different from what he or she thought was being signed only arises if the signatory is illiterate, blind, or not a speaker of the language in which the document is written.

A defendant establishes prima facie entitlement to judgement as a matter of law dismissing a notarial misconduct claim by presenting evidence that the plaintiff signed the document which contained the notary's acknowledgment. The plaintiff cannot raise a triable issue of fact with conclusory testimony that the he or she did not sign the document.

Case in point:   Anderson v. Dinkes & Schwitzer, P.C., NY Slip Op 03721 (2d Dep't May 10, 2017)

Here is the decision.

Tomorrow's issue:  A claim of unfair competition and misappropriation of confidential information.

Monday, May 22, 2017

CPLR Article 31, Freedom of Information Law (FOIL), and discovery.

Practice point: Article 31 is not a statute specifically exempting public records from disclosure under FOIL, and FOIL does not bar the simultaneous use of both CPLR 3101 and FOIL in order to procure discovery.

Case in point:  Smith v. Watson, NY Slip Op 03878 (1st Dep't May 11, 2017)

Here is the decision.

Tomorrow's issue:  The signatory's obligation to read the instrument, and a claim of notarial misconduct.

Friday, May 19, 2017

Dismissal of a slip- or trip-and-fall action.

Practice point:  In a slip- or trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the fall.  A plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence proximately caused the plaintiff's injuries would be based impermissibly on speculation.

Case in point:  Amster v. Kromer, NY Slip Op 03720 (2d Dep't May 10, 2017)

Here is the decision.

Monday's issue:  CPLR Article 31, Freedom of Information Law (FOIL), and discovery.

Thursday, May 18, 2017

Dismissal of an action alleging an elevator-related injury.

The Appellate Division reversed, and dismissed the complaint in this action where plaintiff was injured when, while performing an elevator inspection in defendants' building, the elevator's governor cable snapped and struck him. Plaintiff does not dispute that the work ticket summaries for the building's elevators for the prior six months do not indicate any problem with the governor cable.

Practice point:  Plaintiff's assertion that the alleged defect should have been discovered, notwithstanding the lack of indication of a problem in the work ticket summaries and the lack of complaints, is merely speculative.

Case in point:  Vilella v. Witkoff Group, LLC, NY Slip Op 03872 (1st Dep't May 11, 2017)

Here is the decision.

Tomorrow's issue:  Dismissal of a slip- or trip-and-fall action.

Wednesday, May 17, 2017

The doctrine of res judicata.

Practice point:  The doctrine bars the relitigation of any claims that were decided on the merits in a prior action.

Case in point:  Dipoumbi v. New York City Police Dept., NY Slip Op 03852 (May 11, 2017)

Here is the decision.

Tomorrow's issue:  Dismissal of an action alleging an elevator-related injury.

Tuesday, May 16, 2017

A claim of tortious interference with a contract.

Practice point:  The elements of tortious interference with contract are: (1) the existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to plaintiff. 

Case in point:  Affordable Hous. Assoc., Inc. v. Town of Brookhaven, NY Slip Op 03718 (2d Dep't May 10, 2018) 

Here is the decision.  

Tomorrow's issue:  The doctrine of res judicata.

Monday, May 15, 2017

A municipality's liability.

Practice point:  Absent a special relationship giving rise to the municipality's duty to exercise care for the benefit of a particular class of individuals, no liability may be imposed upon a municipality for failing to enforce a statute or regulation.

Case in point:  Green v. City of New York, NY Slip Op 03693 (1st Dep't May 9, 2017)

Plaintiff was injured when, while standing on the sidewalk, she was struck by a taxicab that hopped the curb. The taxi driver had numerous penalty points on his license that might have supported a suspension of his license prior to the accident, and plaintiff alleges that the failure to suspend the driver sooner was the result of a "computer glitch" at defendant Taxi & Limousine Commission. Plaintiff seeks damages for the City defendants' failure to enforce their own rules and regulations.

The Appellate Division affirmed dismissal as against the City defendants. Plaintiff alleges no facts sufficient to show that the City defendants owed a a special to her.  She sets forth no statutory provisions or other facts to show that the taxi licensing regulations under which she sued were for the benefit of a limited class of persons that included her, as opposed to the public at large. Neither does she allege that the City defendants voluntarily assumed a duty that generated reasonable reliance, or that they assumed positive direction and control in the face of a known, blatant and dangerous safety violation.

Here is the decision.

Tomorrow's issue:  A claim of tortious interference with a contract.

Friday, May 12, 2017

Default judgments.

Practice point:  A plaintiff applying for a default judgment must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear, pursuant to CPLR 3215(f).

A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer must show both a reasonable excuse for the default and the existence of a potentially meritorious defense, pursuant to CPLR 2004.

Case:  Bank of Am., N.A. v. Agarwal, NY Slip Op 03467 (2d Dep't May 3, 2017)

Here is the decision.

Monday's issue:  A municipality's liability.

Thursday, May 11, 2017

Standing in a mortgage foreclosure action.

Practice point:  Where the plaintiff's standing has been placed in issue by the defendants' answer, the plaintiff must also prove its standing as part of its prima facie showing on a motion for summary judgment. In a foreclosure action, a plaintiff has standing if it is the holder or assignee of the underlying note at the time the action is commenced. A plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing either a written assignment or physical delivery of the note.

Case:  Aurora Loan Servs., LLC v. Ang, NY Slip Op 03466 (2d Dep't May 3, 2017)

Tomorrow's issue:  Default judgments.

Wednesday, May 10, 2017

Affirmation of an arbitral award.

The Appellate Division affirmed the granting of the petition to confirm a FINRA arbitration award.

An arbitral award can only be challenged under the criteria set forth in CPLR 7511. The procedural arguments that there was an agreement to arbitrate in New York and that the panel should have adjourned the hearing are not recognized grounds to bar confirmation. In any event, the objections were waived by participation in the arbitration, through an answer, selection of arbitrators, two motions to remove arbitrators, and two motions to dismiss.

Although an agreement can supersede FINRA's arbitration rules, the alleged agreement here was never placed into the record, and, even accepting respondent's characterization, it still provided for arbitration, albeit in New York rather than Florida.

Similarly, respondent's argument with regard to the failure to adjourn is unavailing. Not only is it not a ground under CPLR 7511, but even under the Federal Arbitration Act, refusal to adjourn where a party has full notice and provides no excuse for not attending is not misconduct.

While arguments of arbitrator bias are cognizable, they are unsubstantiated. Allegations that one arbitrator was biased because he was once bankrupt, and another because he had once represented a claimant at a FINRA arbitration, are insufficient.

Case:  Bortman v. Lucander, NY Slip Op 03600 (1st Dep't May 4, 2017)

Here is the decision.

Tomorrow's issue:  Standing in a mortgage foreclosure action.

Tuesday, May 9, 2017

Establishing fraudulent inducement.

Practice point: Where the facts represented are not matters peculiarly within the party's knowledge, and the other party has available the means of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, that party must make use of those means. Otherwise, the party will not be heard to allege fraudulent inducement.

Case:  1810 E & J Rest. Corp. v. Red & Blue Parrot, Inc., NY Slip Op 03465 (2d Dep't May 3, 2017)

Here is the decision.

Tomorrow's issue:  Affirmation of an arbitral award.

Monday, May 8, 2017

A medical malpractice claim.

Practice point:  The elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was the proximate cause of injury. On a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In order to defeat the motion, the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie showing.

Case:  Ortiz v. Wyckoff Hgts. Med. Ctr., NY Slip Op 03189 (2d Dep't April 26, 2017)

Here is the decision. 

Tomorrow's issueEstablishing fraudulent inducement.

Friday, May 5, 2017

The doctrine of mootness applied to a construction project.

Practice point:  The doctrine is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine the actual controversy.  Where the change in circumstances involves a construction project, a court must consider how far the work has progressed towards completion.  However, the race to the project's completion is not determinative, and the court will consider other factors, especially a challenger's failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction during the pendency of the litigation.  Also significant are whether work was undertaken without authority or in bad faith, and whether substantially completed work can be undone without undue hardship. The court may retain jurisdiction despite mootness if there are novel or substantial issues that otherwise would evade judicial review.

Case:  Matter of Town of Mt. Pleasant v. Delaney, NY Slip Op 03185 (2d Dep't April 26, 2017)

Here is the decision.

Monday's issue:  A medical malpractice claim.

Thursday, May 4, 2017

The reasonability of an excuse for a default judgment.

Practice point:   It is considered a reasonable excuse if a defendant provides the summons and complaint to its insurance broker, and then the insurer fails to appoint counsel to appear in the action. However, it is an unreasonable excuse if the defendant asserts that it believed its insurer was acting, even though the defendant concedes receipt of the plaintiff's motion for leave to enter a default judgment.  Receipt of the motion puts the defendant on notice that, in actualty, the insurer has not answered the complaint.

Case:  Gecaj v. Gjonaj Realty & Mgt. Corp., NY Slip Op 03109 (1st Dep't April 25, 2017)

Here is the decision.

Tomorrow's issue: The doctrine of mootness applied to a construction project.

Wednesday, May 3, 2017

A claim of discrimination on the basis of marital status.

Practice point:  The Appellate Division affirmed the granting of defendant real estate brokers' motion to dismiss, as they sought to facilitate, not prevent, plaintiffs' purchase of a cooperative apartment. To the extent that the challenged statements, which suggested, but did not require, that plaintiffs submit a letter describing the "longevity" and "solidity" of their relationship, and stating that they are married, can be construed as inquiry into their sexual orientation or marital status, when read in context with the relevant emails, they do not express any "limitation, specification or discrimination" on the basis of the couples' sexual orientation, but, instead, financial concerns similar to any couple looking to buy an apartment in that building. Since they were married, the couple could not have been denied the apartment on the basis of their marital status had they disclosed their status to the coop board. Therefore, they were not aggrieved by an unlawful discriminatory practice, as is required to state a claim under the State and City Human Rights Laws (Executive Law § 297[1] and [9].

Case:  Verzatt v. Halstead Prop., LLC, NY Slip Op 03260 (1st Dep't April 27, 2017)

Here is the decision.

Tomorrow's issue:  The reasonability of the excuse for a default judgment.

Tuesday, May 2, 2017

Property owners and primary assumption of the risk.

Practice point:  A property owner must act in a reasonable manner to prevent harm to those on its premises, and must control the conduct of persons on its premises when it has the opportunity to control their conduct, and is reasonably aware of the need to do so. The doctrine of primary assumption of risk applies when a consenting participant in a qualified activity is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. A person who chooses to engage in such an activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the activity generally and flow from such participation. The duty owed in these situations is a duty to exercise care to make the conditions as safe as they appear to be. The doctrine generally has been restricted to particular athletic and recreational activities.

Case:  Nevo v. Knitting Factory Brooklyn, Inc., NY Slip Op 03136 (2d Dep't April 26, 2017)

Here is the decision. 

Tomorrow's issue:  A claim of discrimination on the basis of marital status.

Monday, May 1, 2017

Waiver of arbitration.

Defendants waived arbitration, as their participation in the lawsuit, in both state and federal court, for 11 months before moving to compel arbitration manifested an affirmative acceptance of the judicial forum and caused plaintiff unnecessary delay and expense.

Case:  JSBarkats PLLC v. Response Scientific Inc., NY Slip Op 03142 (1st Dep't April 25, 2017)

Here is the decision.

Tomorrow's issue:  Property owners and primary assumption of the risk.

Friday, April 28, 2017

Vacating a judgment by confession.

Practice point:  A defendant may challenge the judgment by confession only by trial in a plenary action, and not by motion.  The defendant has no standing tochallenge the affidavit of confession of judgment, as the affidavit protects the defendant's creditors, not the defendant, pursuant to CPLR 3218.

Case:  Cash & Carry Filing Serv., LLC v. Perveez, NY Slip 03047 (1st Dep't April 20, 2017)

Here is the decision.

Monday's issue:  Waiver of arbitration.

Thursday, April 27, 2017

CPLR 306-b

Practice point:  CPLR 306-b requires that service of the summons and complaint or summons with notice be made within one hundred twenty days after the commencement of the action. CPLR 308(2) permits personal service on a natural person by delivering the summons within the state to a person of suitable age and discretion at the actual place of business of the person to be served and, within 20 days thereafter, mailing a copy of the summons to the actual place of business in an envelope marked "personal and confidential." Both the delivery and the mailing must be performed within 120 days of the filing of process, pursuant to CPLR 306-b.

Case:  Purzak v. Long Is. Hous. Servs., Inc., NY Slip Op 03027 (2d Dep't April 19, 2017)

Here is the decision. 

Tomorrow's issue:  Vacating a judgment by confession.

Wednesday, April 26, 2017

Opposing a summary judgment motion.

Practice point:  A plaintiff cannot defeat a summary judgment motion that makes out a prima facie case merely by asserting a new theory of liability for the first time in the opposing papers.

Case:  Biondi v. BehrmanNY Slip Op 03039 (1st Dep't April 20, 2017)

Here is the decision. 

Tomorrow's issue:  CPLR 306-b.

Tuesday, April 25, 2017

The Labor Law and the interpretation of an Industrial Code regulation.

Practice point:  The interpretation of an Industrial Code regulation presents a question of law for the court. In interpreting a regulation, the Court must assume that the promulgating agency did not deliberately put in the regulation a phrase that was intended to serve no purpose, and each word must be read and given a distinct and consistent meaning.

CasePruszko v. Pine Hollow Country Club, Inc., NY Slip Op 03025 (2d Dep't April 19, 2017)

Here is the decision. 

Tomorrow's issue:  Opposing a summary judgment motion.

Monday, April 24, 2017

Damages, irreperable harm, and injunctive relief.

Practice point:  If a plaintiff fails to allege damages of a noneconomic nature, there is no showing of irreparable harm, and injunctive relief is inappropriate.

Case:  Moltisanti v. East Riv. Hous. Corp., NY Slip Op 02919 (1st Dep't April 18, 2017)

Here is the decision.

Tomorrow's issue:  The Labor Law and the interpretation of an Industrial Code regulation.

Friday, April 21, 2017

Leave to file a late notice of claim

Practice point:  General Municipal Law § 50-e(7) provides that "[w]here the application is for leave to serve a late notice of claim, it shall be accompanied by a copy of the proposed notice of claim." Failure to comply with that provision is sufficient justification to deny the motion.

Case:  Bethune v. Nassau Univ. Med. Ctr. (NUMC), NY Slip Op 02770 (2d Dep't April 12, 2017)

Here is the decision.

Monday's issue:  Damages, irreparable harm, and injunctive relief.

Thursday, April 20, 2017

Personal jurisdiction, nondomiciliaries, and agency.

Practice point:  To establish that a nondomiciliary defendant acted through an agent, a plaintiff must convince the court that the New York actors engaged in purposeful activities in the State in relation to the transaction at issue, for the benefit of and with the knowledge and consent of the defendant, and that the defendant exercised some control over the New York actors. To make a prima facie showing of control, a plaintiff's allegations must sufficiently detail the defendant's conduct so as to persuade a court that the defendant was a primary actor in the specific matter in question. Control cannot be shown based merely upon a defendant's title or position within the corporation, or upon conclusory allegations that the defendant controls the defendant corporation.

Case:  Coast to Coast Energy, Inc. v. Gasarch, NY Slip Op 02876 (1st Dep't April 13, 2017)

Here is the decision. 

Tomorrow's issue:  Leave to file a late notice of claim.

Wednesday, April 19, 2017

Personal jurisdiction over a nondomiciliary.

Practice point:  Pursuant to CPLR 302(a)(1) a New York court may exercise personal jurisdiction over a nondomiciliary if the nondomiciliary has purposefully transacted business within New York, and there is a substantial relationship between the transaction and the claim asserted. Purposeful activities are volitional acts by which the non-domiciliary avails itself of the privilege of conducting activities within the State, thus invoking the benefits and protections of its laws. More than limited contacts are required for purposeful activities sufficient to establish that the non-domiciliary transacted business in New York.

Case:  Coast to Coast Energy, Inc. v. Gasarch, NY Slip Op 02876 (1st Dep't April 13, 2017)

Here is the decision.

Tomorrow's issue:  Personal jurisdiction, nondomiciliaries, and agency.

Tuesday, April 18, 2017

An enforceable liquidated damages clause.

Practice point:  An enforceable liquidated damages clause is an estimate of the extent of the injury that would be sustained as a result of breach of the agreement, and embodies the principle of just compensation for loss.  Whether a clause is an enforceable liquidation of damages or an unenforceable penalty is a question of law, giving due consideration to the nature of the contract and the circumstances.

Case:  555 W. John St., LLC v. Westbury Jeep Chrysler Dodge, Inc., NY Slip Op 02769 (2d Dep't April 12, 2017)

Here is the decision.

Tomorrow's issue:  Personal jurisdiction over a nondomiciliary.

Monday, April 17, 2017

A legal malpractice claim.

Practice point:  An action to recover damages arising from legal malpractice must be commenced within three years, computed from the time the cause of action accrued to the time the claim is interposed, pursuant to CPLR 214[6]. The claim accrues when all the facts necessary to the cause of action have occurred and the allegedly injured party can obtain relief in court. In most cases, this accrual time is measured from the day an actionable injury occurs, even if the aggrieved party is then ignorant of the wrong or injury. What is important is when the malpractice was committed, not when the client discovered it. Continuous representation may toll the statute of limitations, but only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.

Case:  3rd & 6th, LLC v. Berg, NY Slip Op 02768 (2d Dep't April 12, 2017)

Here is the decision.

Tomorrow's issue:  An enforceable liquidated damages clause.

Friday, April 14, 2017

No-fault claims and allegedly fraudulent providers.

Practice point:  A provider that is not solely owned and controlled by physicians, as required by Business Corporation Law §§ 1507(a) and 1508(a), is ineligible for no-fault reimbursements, and insurers may look at the actual ownership and operation of the practice, namely, whether the practice was actually controlled or owned by an unlicensed individual in violation of state and local law. However, insurance carriers cannot delay payment of reimbursement claims to pursue investigations without good cause, and "good cause" requires a demonstration of behavior tantamount to fraud. Violations such as a failure to hold an annual meeting, pay corporate filing fees, or submit otherwise acceptable paperwork on time will not rise to the level of fraud.

Case:  Carothers v. Progressive Ins. Co., NY Slip Op 02615 (2d Dep't April 5, 2017)

Here is the decision.

Monday's issue:  A legal malpractice claim.

Thursday, April 13, 2017

Post-note of issue discovery.

Practice point:  Trial courts are authorized, as a matter of discretion, to permit post-note of issue discovery without vacating the note of issue, so long as neither party will be prejudiced.

Case:  Cuprill v. Citywide Towing & Auto Repair Servs., NY Slip Op 02729 (1st Dep't April 6, 2017)

Here is the decision.

Tomorrow's issue: No-fault claims and allegedly fraudulent providers.

Wednesday, April 12, 2017

Settlement agreements as to child support.

Practice point:  Where a stipulation of settlement is incorporated but not merged into a judgment of divorce, it is a contract subject to the ordinary principles of contract construction and interpretation. These rules provide that a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms, and courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing. In the specific realm of settlement agreements defining a parent's child support obligations, there is a presumption that the agreement reflects what the parties believed to be a fair and equitable division of the financial burden to be assumed in rearing the child. However, the parties cannot contract away the duty of child support. Despite the fact that a separation agreement is entitled to the solemnity and obligation of a contract, when children's rights are involved the contract yields to the welfare of the children. The duty of a parent to support the child  cannot be eliminated or diminished by the terms of a separation agreement, nor can it be abrogated by contract.

Case:  Keller-Goldman v. Goldman, NY Slip Op 02723 (1st Dep't April 6, 2017)

Here is the decision. 

Tomorrow's issue: Post-note of issue discovery.

Tuesday, April 11, 2017

A law firm's motion to enforce an attorney's lien.

The Appellate Division affirmed denial of the motion where the nonparty firm alleges that, after it interposed an answer, it settled the personal injury action, but the plaintiff-client refused to sign the settlement papers.  The firm sent a letter to the plaintiff indicating its intent to move to be relieved as counsel, and the moved to confirm the purported settlement and enforce an attorney's lien pursuant to Judiciary Law § 475. In support of the motion, the firm submitted certain correspondence and the retainer agreement, but it did not submit a signed writing reflecting the terms of the purported settlement.

The Appellate Division noted that there was no stipulation made in open court, and the firm failed to proffer a signed writing reflecting a settlement or any clear indicia that the plaintiff actually authorized the purported settlement, pursuant to CPLR 2104. Without a settlement or a verdict, there was no favorable result of litigation in which the firm had a security interest, and so the firm was not entitled to confirmation of the purported settlement or an attorney's lien pursuant to Judiciary Law § 475.

Case:  Baker v. Restaurant Depot, NY Slip Op 02615 (2d Dep't April 5, 2017)

Tomorrow's issue:  Settlement agreements as to child support.

Monday, April 10, 2017

Civil contempt.

Practice point:  The validity of an order underlying a contempt proceeding may not be attacked on the grounds that the issuing court had no jurisdiction to do so, or that the order had been stayed.  

Judiciary Law § 753 does not require a showing of wilfulness or monetary harm as a precondition to a finding of civil contempt, and the Court of Appeals has not imposed a wilfulness requirement for a civil contempt finding.

Case:  Board of Directors of Windsors Owners Corp. v. Platt, NY Slip Op 02508 (1st Dep't March 30, 2017

Here is the decision. 

Tomorrow's issue:  A law firm's motion to enforce an attorney's lien.

Friday, April 7, 2017

An alleged breach of a non-compete clause.

A plaintiff alleging a competition-based claim must identify the relevant market with reference to the rule of reasonable interchangeability. Here,  plaintiff pleaded nothing but conclusory statements without factual support for its claim that its products are competitive with those of the corporate defendant. The only allegation in the complaint concerning competition is that both plaintiff and the corporate defendant market their coffeemakers to commercial customers. There are no allegations that the corporate defendant's products are sold to the same relevant market, for a similar purpose, let alone to the same customers. The complaint further fails to allege that plaintiff lost any customers to the corporate defendants. As to damages, vague, boilerplate allegations are insufficient to sustain the cause of action.

Case:  Bodum USA, Inc. v. Perez, NY Slip Op 02507 (1st Dep't March 30, 2017)

Here is the decision.

Monday's issue:  Civil contempt.

Thursday, April 6, 2017

Dismissal based on documentary evidence.

Practice point:  Dismissal of a complaint pursuant to CPLR 3211(a)(1) is only appropriate where the documentary evidence presented conclusively establishes a defense to the plaintiff's claims as a matter of law. The documents submitted must be explicit and unambiguous. In considering the documents, a court must adhere to the concept that the allegations in the complaint are presumed to be true, and that the pleading is entitled to all reasonable inferences. However, while the pleading is liberally construed, the court is not required to accept as true factual allegations that are plainly contradicted by documentary evidence.
Case:  Dixon v. 105 W. 75th St. LLC, NY Slip Op 02504 (1st Dep't March 30, 2017)  
Here is the decision.   
Tomorrow's issue:  An alleged breach of a non-compete clause.

Wednesday, April 5, 2017

A municipality's liability on a § 1983 claim.

Practice point:  A municipality may not be held liable pursuant to 42 USC § 1983 solely on a theory of respondent superior. To hold a municipality statutorily liable for the conduct of employees below the policy-making level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy.

Case:  Blake v. City of New York, NY Slip Op 02399 (2d Dep't March 29, 2017)

Here is the decision. 

Tomorrow's issue: Dismissal based on documentary evidence.

Tuesday, April 4, 2017

The doctrine of collateral estoppel and the pendency of an appeal.

Practice point:  The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling. The party seeking the benefit of the doctrine must establish that the identical issue was necessarily decided in the prior action and is dispositive in the present action. Once the party invoking the doctrine discharges his or her burden in that regard, the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination. The rule in New York is that the pendency of an appeal does not prevent the use of the challenged judgment as the basis of' collateral estoppel.

Case:  77 Water St., Inc. v. JTC Painting & Decorating Corp., NY Slip Op 02396 (2d Dep't March 29, 2017)

Here is the decision. 

Tomorrow's issue:  A municipality's liability on a section 1983 claim.