Friday, March 31, 2017

Statute of frauds.

The General Obligations Law provides, in pertinent part, that an agreement is void if it is not in writing and "subscribed by the party to be charged therewith" (General Obligations Law § 5-701[a]) when the agreement "[i]s a contract to pay compensation for services rendered in negotiating . . . a business opportunity" (General Obligations Law § 5-701[a][10]). The memorandum necessary to satisfy the statute of frauds may be pieced together out of separate writings, connected with one another either expressly or by the internal evidence of subject matter and occasion.  An unsigned writing may be read together with the signed writings, provided that they clearly refer to the same subject matter or transaction.

Part performance does not take the matter out of the statute of frauds. The exception to the statute of frauds for part performance has not been extended to General Obligations Law § 5-701.

Case:  Kelly v. P & G Ventures 1, LLC, NY Slip Op 02026 (2d Dep't March 22, 2017)

Here is the decision.

Monday's issue:  Judicial review of a prenuptial agreement.

Thursday, March 30, 2017

Family Ct Act § 437-a.

Family Court improvidently exercised its discretion in not imputing to the father as income the $500 per month he was earning from his part-time employment in 2012 solely on the basis of Family Ct Act § 437-a, which bars the Family Court from requiring a recipient of social security disability benefits to engage in certain employment related activities. That statute is not dispositive in this case where the father had been employed during the pendency of his social security disability benefits application and did not show that he was unable to continue to be employed in any capacity after he began receiving benefits. The matter was remanded for a new determination as to the amount of child support, including a new determination as to whether the $500 per month should be imputed to the father.

Case:  Matter of Anthony S. v. Monique T.B., NY Slip Op 02365 (1st Dep't March 28, 2017)

Here is the decision.

Tomorrow's issue:  Statute of frauds.

Wednesday, March 29, 2017

The law of waiver and estoppel.

Practice point: Once a contract is formed, the parties may change their agreement by another agreement, by course of performance, or by conduct amounting to a waiver or estoppel.  So, contractual rights may be waived if they are knowingly, voluntarily and intentionally abandoned, and abandonment may be established by affirmative conduct or by failure to act so as to evince an intent not to claim a purported advantage.

As the intentional relinquishment of a known right, a waiver is not lightly presumed, and mere negligence, oversight or thoughtlessness does not create a waiver. Similarly, a party's reluctance to terminate a contract upon a breach and its attempts to encourage the breaching party to adhere to its obligations under the contract do not necessarily constitute a waiver of the innocent party's rights in the future.

However, a waiver may be proved by undisputed acts or language so inconsistent with the party's purpose to stand upon his or her rights as to leave no opportunity for a reasonable inference to the contrary.

Case:  Kamco Supply Corp. v. On the Right Track, LLC, NY Slip Op 02025 (2d Dep't March 22, 2017)

Here is the decision.

Tomorrow's issue:  Family Ct Act § 437-a.

Tuesday, March 28, 2017

Summary judgment and discovery.

Practice point:  The motion will not be defeated when the nonmovant offers only speculation that further discovery may yield evidence that raises a triable issue.

Case:  Stein v. City of New York, NY Slip Op 02131 (1st Dep't March 23, 2017)

Here is the decision.

Tomorrow's issue:  The law of waiver and estoppel.

Monday, March 27, 2017

An appeal from an intermediate order.

Practice point:  The right of direct appeal from an intermediate order is terminated with the entry of judgment in the action.

Case: Qin Jun Ying v. May Flower Intl., Inc., NY Slip Op 01899 (2d Dep't March 15, 2017)

Here is the decision.

Tomorrow's issue:  Summary judgment and discovery.

Friday, March 24, 2017

Notice in an eviction proeeding.

Practice point:   Compliance with a statutory notice requirement is a condition precedent to maintaining a summary eviction proceeding, and the landlord has the burden to prove that element of its case.  A tenant may timely raised the objection in the answer and again in across motion for summary judgment despite not having raised it in the preanswer motion, pursuant to CPLR 3211[e].

Case:  Mautner-Glick Corp. v. Glazer, NY Slip Op 01963 (1st Dep't March 16, 2017)

Here is the decision.

Monday's issue:  An appeal from an intermediate order.

Thursday, March 23, 2017

A claim of conspiracy to commit a tort.

Practice point:  The conspiracy to commit a tort is not, of itself, a cause of action, and such an action is time-barred when the substantive tort underlying it is time-barred.

Case:  Loren v. Church St. Apt. Corp., NY Slip Op 01964 (1st Dep't March 16, 2017)

Here is the decision.

Tomorrow's issue: Notice in an eviction proceeding.

Wednesday, March 22, 2017

Snow, ice, and an out-of-possession landlord's liability.

Practice point:  Snow or ice is not a significant structural or design defect for which an out-of-possession landlord may be held liable.

Case:  Cepeda v. KRF Realty LLC, NY Slip Op 01961 (1st Dep't March 16, 2017)

Here is the decision.

Tomorrow's issue:  A claim of conspiracy to commit a tort.

Tuesday, March 21, 2017

The improper entry of a clerk's judgment

Practice point:  A clerk does not have authority to enter a clerk's judgment against a defendant pursuant CPLR 3215(a) if the plaintiff's causes of action are not for a sum certain.

Case:  Primary Care Ambulance Corp. v. Simpson, NY Slip Op 01898 (2d Dep't March 15, 2017)

Here is the decision.

Tomorrow's issue:  Snow, ice, and an out-of-possession landlord's liability.

Monday, March 20, 2017

A fall down the stairs.

The Appellate Division affirmed the denial of defendants' summary judgment motion in this action where plaintiff was injured when she fell while ascending the stairs in defendants' restaurant. Plaintiff testified that as she attempted to move her foot to the next step, it came in contact with the front lip of the second step. Contrary to defendants' assertion, plaintiff also testified that she had to bend down to grab the handrail, which was low. This evidence, as well as the affidavit of plaintiffs' expert engineer, who opined that the low positioning of the handrails and the higher position of the step risers were in violation of various New York City Building Codes, sufficiently raised triable issues as to whether the riser height of the stairs and low handrail were proximate causes of plaintiff's injuries.

Case:  Murray v. Villa Barone Ristorante, Inc., NY Slip Op 01783 (1st Dep't March 9, 2017)

Here is the decision.

Tomorrow's issue:  The improper entry of a clerk's judgment.

Friday, March 17, 2017

A claim of discrimination based on national origin.

The Appellate Division affirmed dismissal of this claim in which plaintiff alleged that the City agency failed to select him for two promotions and paid him less than it paid a peer of a different national origin.

Plaintiff established prima facie that he was passed over for promotion under circumstances raising an inference of discrimination. In response, defendants offered legitimate, nondiscriminatory reasons for promoting two employees who were not of plaintiff's origin. Agency decision-makers demonstrated that plaintiff limited his work to fulfilling the minimal requirements of his job; that he sometimes balked at assignments without good reason; and that he failed to meet all of his goals. Defendants further demonstrated that, in contrast, the promoted employees had done outstanding work in positions relevant to the two vacancies at issue.

Plaintiff failed to raise triable issues of fact as to whether defendants' proffered reasons for their decisions were pretextual or incomplete, given the absence of any evidence from which a reasonable jury could infer that his national origin played a role in defendants' passing him over for the promotions. Plaintiff admittedly never complained about the promotion process before commencing this action, and there is no indication that he raised any internal complaints of discrimination. Even if the promotions contravened Civil Service Rules and Regulations § 3.3(a) because the promoted individuals were provisional rather than permanent employees, this technical violation does not establish a discriminatory motive. Plaintiff's other claims that the promotions violated policies and regulations are unsupported. His testimony that the promoted employees were appointed based on friendship with the decision-makers is unavailing. The agency's failure to advertise the positions does not give rise to an inference of discrimination, but merely relieves a plaintiff of the burden to show that he applied for the position.

Plaintiff's deposition testimony recounting two occasions when one of the decision-makers allegedly shouted admonitions at him or another employee of plaintiff's national origin does not establish discrimination based on national origin.  Mere personality conflicts must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code.

Finally, plaintiff failed to make a prima facie showing in support of his claim that he was paid less than a peer of another national origin. Although both he and the other employee had the same civil service title, they were not similarly situated in light of the differences in their experience, the other employee's earlier salary, and their differing job responsibilities.

Case:  Uwoghiren v. City of New York, NY Slip Op 01782 (1st Dep't March 9, 2017)

Here is the decision.

Monday's issue:  A fall down the stairs.

Thursday, March 16, 2017

Attorneys' fees in a matrimonial action.

Practice point:  In determining whether to award attorneys' fees, a court will review the financial circumstances of both parties, together with all of the other circumstances of the case, which may include the relative merit of the parties' positions. An award pursuant to Domestic Relations Law § 237(a) is warranted where there is a significant disparity in the financial circumstances of the parties.

Case:  Bagielto v. Kolsch, NY Slip Op 01666 (2d Dep't March 8, 2017)

Here is the decision.

Tomorrow's issue:  A claim of discrimination based on national origin.

Wednesday, March 15, 2017

September 11 and the presumption of causation.

Practice point:  As the legislature has not the extended the presumption of causation to all disabilities subsequently developed by responders to the September attacks, a Court must limit the presumption's applicability to the scope the legislature has provided for it.

Case:  Matter of Stavropoulos v. Bratton, NY Slip Op 01779 (1st Dep't March 9, 2017)

Here is the decision.

Tomorrow's issue: Attorneys' fees in a matrimonial action.

Monday, March 13, 2017

An insufficient claim of intentional infliction of emotional distress.

Practice point:  Plaintiff's factual allegation that defendant made false statements to the police, causing her arrest and incarceration, was insufficient as a matter of law to constitute the extreme and outrageous behavior necessary to sustain the claim.

Case:  Matthaus v. Hadjedj, NY Slip Op 01636 (1st Dep't March 2, 2017)

Here is the decision.

Tomorrow's issue:  September 11 and the presumption of causation.

Friday, March 10, 2017

Summary judgment in a slip-and-fall action.

The Appellate Division affirmed summary judgment and dismissal in this action where plaintiff was injured when she tripped and fell on the sidewalk in front of defendant's home. Defendant, as a single family homeowner, could only be liable for the alleged half-inch height differential where the two sidewalk flagstones met in front of her house if she created or exacerbated the alleged hazardous condition. There was no evidence in the record to indicate that defendant created the height differential. Plaintiff, at most, alleged that tar applied by defendant's husband in the joints between the sidewalk flagstones had somehow obstructed her vision of the alleged height differential. She never claimed to have tripped over the caulking that was only applied in the joint space between the sidewalk flagstones, and her assertion that the caulking had obstructed her view of the height differential in the flagstones was insufficient to raise a triable issue of fact.

Case:  Napoli v. Di Marco, NY Slip Op 01633 (1st Dep't March 2, 2017)

Here is the decision.

Monday's issue:  An insufficient claim of intentional infliction of emotional distress.

Thursday, March 9, 2017

The standard for an employment termination that shocks the conscience.

Practice point:  A result is shocking to the court's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in similar situations, and, therefore, a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved.

Case:  Matter of Beatty v. City of New York,, NY Slip 01628 (1st Dep't March 2, 2017)

Here is the decision.

Tomorrow's issue:  Summary judgment in a slip-and-fall action.

Wednesday, March 8, 2017

A foreclosure settlement conference.

Practice point:  Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution. The purpose of the good faith requirement is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort. Compliance with the good faith requirement is measured by the totality of the circumstances and whether the party's conduct demonstrates a meaningful effort to reach a resolution.

Case:  Aurora Loan Servs., LLC v. Diakite, NY Slip Op 01528 (2d Dep't March 1, 2017)

Here is the decision.

Tomorrow's issue: The standard for an employment termination that shocks the conscience.

Tuesday, March 7, 2017

A landowner's liability.

Practice point:  A landowner has a duty to maintain the premises in a reasonably safe condition. In determining the extent of that duty, the court must take into account circumstances including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that the landowner affirmatively created the condition or had actual or constructive notice of its existence. A defendant is deemed to have had constructive notice of a defect when (1) the defect was visible and apparent, and (2) it existed long enough for the defendant to have discovered and remedied it before the plaintiff was injured.  When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.  In moving for summary judgment on the ground that the alleged defect was latent, a defendant must establish, prima facie, that the defect was not visible or apparent and would not have been discoverable upon a reasonable inspection, and that he or she did not affirmatively create the defect and did not have actual notice of it.

Case:  Arevalo v. Abitabile, NY Slip Op 01526 (2d Dep't March 2, 2017)

Here is the decision.

Tomorrow's issue:  A foreclosure settlement conference.

Monday, March 6, 2017

Motions to vacate.

Practice point:  The court may grant a motion to vacate a default on grounds of excusable default and a showing of a meritorious defense, if the motion is made within one year after service of the order entered on default, with written notice of its entry, pursuant to CPLR 5015[a][1].

Case:  Marston v. Cole, NY Slip Op 01489 (1st Dep't February 28, 2017)

Here is the decision.

Tomorrow's issue: A landowner's liability.

Friday, March 3, 2017

Guaranties on a note, and counterclaims.

Plaintiff established prima facie its entitlement to summary judgment on defendants' guaranties of a nonparty's obligations under a loan agreement by submitting evidence of the loan agreement, promissory notes, individual guaranties, and the borrower's and defendants' failure to pay. In opposition, defendants failed to raise an issue of fact.

The claims of breach of contract and negligent interference with collateral are not defenses to the borrower's liability under the loan agreement; they are merely counterclaims. The adjudication of these claims will not affect the borrower's liability for repayment of the amounts borrowed before the breach occurred, although it may entitle the borrower to damages. Because the breach of contract and negligent interference with collateral claims are separate from the borrower's unequivocal and unconditional obligation to repay the monies it was loaned, defendants are still liable under the guaranties and promissory notes.

Case:  Capital One Taxi Medallion Fin. v. Corrigan, NY Slip Op 01488 (1st Dep't February 28, 2017)

Here is the decision.

Monday's issue:  Motions to vacate.

Thursday, March 2, 2017

An exception to the best evidence rule.

Practice point:  Under an exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith.  Once the absence of an original document is excused, all competent secondary evidence is admissible to prove its contents. However, the proponent of the secondary evidence has a heavy burden of establishing, preliminarily to the court's satisfaction, that it is a reliable and accurate portrayal of the original. So, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original before ruling on its admissibility.

Case:  76-82 St. Marks, LLC v. Gluck, NY Slip Op 01329 (2d Dep't February 22, 2017)

Here is the decision.

Tomorrow's issue:  Guaranties on a note, and counterclaims.

Wednesday, March 1, 2017

The continuous wrong doctrine.

Practice point:  The continuous wrong doctrine is an exception to the general rule that the statute of limitations runs from the time of the breach, even though the damage occurs later.  Typically, the doctrine is invoked where there is a series of continuing wrongs, and it serves to toll the running of a period of limitations to the date of the commission of the last wrongful act.  If applicable, the doctrine saves all claims for recovery of damages, but only to the extent of wrongs committed within the applicable statute of limitations.

The doctrine may be predicated only on continuing unlawful acts, and not on the continuing effects of earlier unlawful conduct. The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs. The doctrine is inapplicable where there is one tortious act alleged, as the cause of action accrues in those cases at the time that the wrongful act first injured plaintiff, and it does not change as a result of continuing consequential damages. In a contract action, the doctrine extends the statute of limitations when the contract imposes a continuing duty on the breaching party. Thus, where a plaintiff asserts a single breach - with damages increasing as the breach continued - the theory does not apply.

Case:  Henry v. Bank of Am., NY Slip Op 01436 (1st Dep't February 23, 2017)

Here is the decision.

Tomorrow's issue:  An exception to the best evidence rule.