Friday, September 22, 2017

Documentary evidence on a motion to dismiss.

Practice point:  An unambiguous contract provision may qualify as documentary evidence within the meaning of CPLR 3211(a).

Student note:  To prevail on a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), a defendant must submit documentary evidence that utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Case:  13 Throop, LLC v. Triumph, the Church of the New Age, NY Slip Op 06516 (2d Dep't September 20, 2017)

Here is the decision.

Thursday, September 21, 2017

Insincere promises and fraud.

Practice point:  An insincere promise to perform a contractual obligation is not actionable as fraud.

Student note:  Absent this rule, contract claims would be routinely pleaded in the alternative as fraud, eroding the distinction between the two causes of action.

Case:  Cronos Group Ltd. v. XComIP, LLC, NY Slip Op 06515 (1st Dep't September 19, 2017)

Here is the decision.

Wednesday, September 20, 2017

A 3211(a) motion.

Practice point:  The court may not treat the motion as one for summary judgment without having given the parties notice that it intends to do so, pursuant to CPLR 3211(c).

Student note: On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the complaint must be construed liberally, the factual allegations must be deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences.  In opposition to the motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve claims that are inartfully pleaded but potentially meritorious.

Case:  Christ the Rock World Restoration Church Intl., Inc. v. Evangelical Christian Credit Union, NY Slip Op 06426 (2d Dep't September 13, 2017)

Here is the decision.

Tuesday, September 19, 2017

Moving for relief from a conditional order of preclusion.

Practice point:  To obtain relief from a conditional order of preclusion, the defaulting party must demonstrate a reasonable excuse for the failure to produce the requested items and the existence of a potentially meritorious claim or defense.

Student note:  In its discretion, a court may find that law office failure is a reasonable excuse.

Csse:  C.C. v. Vargas, NY Slip Op 06424 (2d Dep't September 13, 2017)

Here is the decision.

Monday, September 18, 2017

Appellate review after a nonjury trial.

Practice point:  In reviewing a determination made after a nonjury trial, the Appellate Division's authority is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses.  Where the trial court's findings of fact rest largely on considerations relating to the credibility of witnesses, the Appellate Division owes deference to the trial court's credibility determinations.

Student note:  Pursuant to CPLR 4404(b), after a nonjury trial, a court may, on the motion of a party or its own motion, set aside its decision and make new findings of fact or conclusions of law.

Case:  BNG Props., LLC v. Sanborn, NY Slip Op 06423 (2d Dep't September 13, 2017)

Here is the decision.

Friday, September 15, 2017

Summary judgment in a mortgage foreclosure action.

Practice point:  The moving plaintiff establishes a prima facie case through the production of the mortgage, the unpaid note, and evidence of default.  If the defendant puts standing at issue, the plaintiff must prove its standing in order to be entitled to relief.  A plaintiff has standing if, at the time the action is commenced, it is the holder or assignee of the underlying note.

Student note:  Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.

Case:  Bank of Am., N.A. v. Martinez, NY Slip Op 06422 (2d Dep't September 13, 2017)

Here is the decision.

Thursday, September 14, 2017

Determining damages for pain and suffering.

Practice point:  When the interval between the injury and death is relatively short, the elements to be considered include the degree of consciousness, the severity of pain, and the apprehension of impending death,

Case:  Matter of 91st St. Crane Collapse Litig., NY Slip Op 06419 (1st Dep't September 12, 2017)

Here is the decision.

Wednesday, September 13, 2017

A retaliation claim under Labor Law § 741.

Practice point:  The Appellate Division reversed the motion court's finding that plaintiff's statutory retaliation claim is completely barred by collateral estoppel. The issue of whether defendant hospital terminated plaintiff doctor because she reported inadequate medical care to her supervisors, and later, the Department of Health was not at issue in the prior administrative proceedings and related article 78 proceeding, and was not necessarily decided in the prior proceedings.

In the prior proceedings it was determined that plaintiff had engaged in professional incompetence on three occasions, and that defendant did not fabricate the allegations, but there was no express or implied ruling that defendant terminated her employment on the basis of that incompetence, or whether in terminating her, defendant had impermissibly retaliated against her for whistleblowing.

Student note:  While collaterel estoppel does not otherwise bar litigation of the retaliation claim, plaintiff is precluded from relitigating the three instances of incompetence found in the prior proceedings.

Case:  Mehulic v. New York Downtown Hosp., NY Slip OP 06416 (1st Dep't September 12, 2017)

Here is the decision.

Tuesday, September 12, 2017

Invoking a forum selection clause against a non-signatory.

Practice point:  Under New York law, a signatory to a contract may invoke a forum selection clause against a non-signatory if the non-signatory is so closely related to one of the signatories that enforcement of the clause is foreseeable.

Student note:  The rationale behind binding closely related entities to the forum selection clause is that it promotes stable and dependable trade relations.

Case:  Universal Inv. Advisory SA v. Bakrie Telecom PTE, Ltd., NY Slip Op 06344 (1st Dep't August 29, 2017)

Here is the decision.

Tomorrow's issue:  A retaliation claim under Labor Law § 741.

Monday, September 11, 2017

Sufficiency of service.

Practice point:  Service was proper where the process server attempted to effect service of the landlord's termination notice at the tenant's residential building during reasonable business hours and non-business hours, on two different days.  As the process server could get no closer to the tenant's apartment than the building's front door, after repeatedly ringing the doorbell to the apartment, he affixed the notice conspicuously to the building's front door and subsequently complied with the mailing requirement.

Case:  Matter of 322 W. 47th St. HDFC v. Loo, NY Slip Op 06403 (1st Dep't September 5, 2017)

Here is the decision.

Tomorrow's issue: Invoking a forum selection clause against a non-signatory.

Friday, September 8, 2017

A multiple dwelling's owner's duty of care.

Practice point:  Pursuant to Multiple Dwelling Law § 78[1], the owner is responsible for exercising reasonable care in keeping the property, including the wiring, in good repair.

Student note:  A property owner has a non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others.

Case:  Daly v. 9 E. 36th LLC, NY Slip Op 06404 (1st Dep't September 5, 2017)

Here is the decision.

Monday's issue: Sufficiency of service.