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.

Monday, April 3, 2017

Judicial review of a prenuptial agreement.

The challenge of the agreement is a high bar, and where the agreement and the circumstances surrounding its execution are fair, there is no further inquiry.

Case:  Abram v. Joanne Cheung Sui Mei, NY Slip Op 02368 (1st Dep't March 28, 2017)

Here is the decision.

Tomorrow's issue:  The doctrine of collateral estoppel and the pendency of an appeal.