Friday, August 31, 2012

Forum selection clauses and improper venue.

Practice point: A forum selection clause may constitute documentary evidence sufficient to provide a proper basis for dismissal of a complaint pursuant to CPLR 3211(a)(1), such as where the forum selection clause provides that any dispute arising under the relevant agreement must be litigated in the courts of a state other than New York, in federal court, or in the courts of a country other than the United States.

Student note: Commencing an action in the proper court, but in an improper county, is not a jurisdictional defect requiring dismissal of the action.

Case: Lowenbraun v. McKeon, NY Slip Op 06016 (2d Dept. 2012).

Here is the decision.

Tuesday’s issue: Consumer protection from bad actors.

Thursday, August 30, 2012

A court's oversight of discovery.

Practice point: In the exercise of its broad discretion, the court may strike pleadings or parts of pleadings as a sanction against a party who refuses to obey an order for disclosure or willfully fails to disclose information which the court finds should have been disclosed.

Student note: The drastic remedy of striking a pleading is inappropriate, however, absent a clear showing that the failure to comply with discovery obligations was willful and contumacious.

Case: Liang v. Yi Jing Tan, NY Slip Op 06015 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Forum selection clauses and improper venue.

Wednesday, August 29, 2012

Setting aside a jury verdict.

Practice point: For a reviewing court to determine that a jury's verdict is not supported by legally sufficient evidence, it must conclude that there is no valid line of reasoning and permissible inferences by which the jury could have rationally reached its verdict on the basis of the evidence presented at trial. In addition, a jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence.

Student note: Whether the verdict should be set aside does not involve a question of law, but rather requires a discretionary balancing of many factors. It is for the jury to make determinations as to the credibility of the witnesses, and great deference is accorded to the jury, which had the opportunity to see and hear the witnesses.

Case: Geary v. Church of St. Thomas Aquinas, NY Slip Op 06011 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: A court’s oversight of discovery.

Tuesday, August 28, 2012

Duty to provide a safe workplace.

Practice point: Owners and general contractors, and their agents, have a common-law duty to provide employees with a safe place to work. Labor Law § 200 merely codified that duty.

Student note: The common-law duty to provide employees with a safe place to work does not extend  to hazards that are part of, or inherent in, the very work the employee is to perform.

Case: Annicaro v. Corporate Suites, Inc., NY Slip Op 05899 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Setting aside a jury verdict.

Monday, August 27, 2012

Piercing the corporate veil.

Practice point: In order to state a viable claim against a shareholder, in an individual capacity, for actions purportedly taken on behalf of the corporation, a plaintiff must allege facts that, if proved, indicate that the shareholder exercised complete domination and control over the corporation and abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice.

Student note: Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate form include the failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and the personal use of corporate funds.

Case:  Allstate ATM Corp. v. E.S.A. Holding Corp., NY Slip Op 05898 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Duty to provide a safe workplace.

Friday, August 24, 2012

E-mails can constitute a binding fee arrangement.

Practice point: An exchange of e-mails may constitute an enforceable agreement if the writings include all of the agreement's essential terms, including the fee, or other cost, involved.

Student note: The existence of the valid and enforceable fee agreement precludes the causes of action sounding in quasi contract.

Case: Kasowitz, Benson, Torres & Friedman, LLP. v. Duane Reade, NY Slip Op 05889 (1st Dept. 2012).

Here is the decision. 

Monday’s issue: Piercing the corporate veil.

Thursday, August 23, 2012

Lack of an original signature on a pleading, and leave to interpose an amended answer.

Practice point: The Appellate Division held that the Supreme Court should not have denied the plaintiff's motion for summary judgment on the ground that the affidavits submitted in support thereof were not originally signed. CPLR 2101(e), entitled "Form of papers," specifically states that copies, rather than originals, of all papers, including affidavits, may be served or filed.

Student note: The Appellate Division also held that the Supreme Court improvidently exercised its discretion in granting the defendant's motion for leave to interpose an amended answer so as to assert an additional counterclaim seeking damages allegedly incurred by the defendant as a result of a burglary at the subject premises in 2009. Pursuant to CPLR 3025(b), leave to amend a pleading should be freely given, provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.

Here, pursuant to the terms of the lease, the defendant may only seek to recover for damage or loss to its business from the plaintiff if it can truthfully allege that the plaintiff's negligence caused or contributed to that damage or loss and that the defendant was not insured for that damage or loss. In an affidavit of the defendant's vice-president, which was submitted in support of the cross motion, he specifically stated that they had insurance covering the burglary losses, and that they were reimbursed by their carrier. This admission, together with the lease provision, rendered the defendant's proposed counterclaim patently devoid of merit.

Case: Rechler Equity B-1, LLC v. AKR Corp., NY Slip Op 05813 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: E-mails can constitute a binding fee arrangement.

Wednesday, August 22, 2012

Collateral estoppel.

Practice point: Where a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from relitigating the issue of his liability, regardless of whether the conviction resulted from a plea or a trial.

Student note: The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action. The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination.

Case: Maiello v. Kirchner, NY Slip Op 05805 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Lack of an original signature on a pleading, and leave to interpose an amended answer.

Tuesday, August 21, 2012

Summary judgment in an age discrimination action.

Practice point: To establish entitlement to summary judgment dismissing a cause of action alleging age discrimination in violation of Executive Law § 296, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for its challenged actions, the absence of a material issue of fact as to whether its explanations were pretextual.

In opposition, plaintiff must show that there is a material issue of fact as to whether (1) the employer's asserted reason for the challenged action is false or unworthy of belief and, (2) it is more likely than not the employee's age was the real reason for the termination.

Student note: To support a prima facie case of age discrimination under the statute, the plaintiff must demonstrate (1) that plaintiff is a member of the class protected by the statute; (2) that plaintiff was actively or constructively discharged; (3) that plaintiff was qualified to hold the position from which plaintiff was terminated; and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination.

Case: Dzikowski v. J.J. Burns & Co., LLC, NY Slip Op 05797 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Collateral estoppel.

Monday, August 20, 2012

Grounds for the recovery of interest.

Practice point: The complaint did not state a cause of action because it set forth no contractual or statutory basis upon which plaintiff could recover interest. The obligation to pay interest on a debt is not implied as a matter of law. Consistently, the First Department has held that as a general rule, interest is allowed only when provided for by contract, express or implied, or by statute, or when, as damages, it becomes due after a default by the person liable for payment.

Student note: Pre-judgment or pre-decision interest is purely a creature of statute, based on Matter of Bello v. Roswell Park Cancer Inst., 5 NY3d 170 (2005). 

Case: Metwaly v. International Bus. Machines Corp., NY Slip Op 05791 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Summary judgment in an age discrimination action.

Friday, August 17, 2012

Attorney's fees in a matrimonial matter.

Practice point: Where there has been substantial compliance with the matrimonial rules, an attorney will be allowed to recover the fees owed for services rendered, but not yet paid for. The applicable rule is 22 NYCRR 1400.3, which mandates that an attorney in a matrimonial matter file a copy of the signed retainer agreement with the court, along with the statement of net worth. Here, the attorney was retained in March 2004, and the record shows that a copy of the executed retainer was filed with the court on May 14, 2004, along with the updated statement of net worth.

Student note: Even if plaintiff, as substituted counsel, should have filed the retainer within 10 days of its execution, he substantially complied with the requirements by filing the executed copy with the updated statement of net worth. Although it would have been better practice for plaintiff to have put proof of the filing in evidence on his direct case, his failure to do so does not change the fact that he substantially complied with the rule.

Case: Daniele v. Puntillo, NY Slip Op 05790 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Grounds for the recovery of interest.

Thursday, August 16, 2012


Practice point: It was not an improvident exercise of the court's discretion to preclude plaintiff's expert from testifying to 15 days of alleged pain and suffering where, until the eve of trial, and without any explanation for lateness, plaintiff led defendants to believe that her expert would opine that she experienced 10 minutes of pain and suffering.

Student note: Nor did the trial court err in allowing defendants to introduce evidence of decedent's character, including a prior guilty plea to a shoplifting offense. Plaintiff sought to recover damages for loss of the "intellectual, moral, and physical guidance" incurred due to the loss of plaintiff as a parent to her daughter. This evidence is relevant to such a claim. In any event, plaintiff's counsel opened the door to evidence of decedent's shoplifting by affirmatively placing her character in issue in the opening statement.

Case: Sanchez v. City of New York, NY Slip Op 05787 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Attorney’s fees in a matrimonial matter.

Wednesday, August 15, 2012

Dismissal for failure to state a cause of action.

Practice point: A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint, pursuant to CPLR 3211[c].

Student note: When evidentiary material is considered, and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it has been shown that a material fact as offered by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it, the motion should be denied.

Case: Jannetti v. Whelan, NY Slip Op 05726 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Evidence.

Tuesday, August 14, 2012

Rear-end collisions.

Practice point: A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision.

Student note: Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation.

Case: Hauswirth v. Transcare N.Y., Inc., NY Slip Op 05723 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Dismissal for failure to state a cause of action.

Monday, August 13, 2012

Warranty of habitability.

Practice point: In the absence of fraud or a covenant, a commercial lessor does not represent that the premises are tenantable and may be used for the purpose for which they are apparently intended.

Student note: The implied warranty of habitability applies only to residential lease space, pursuant to Real Property Law § 235-b.

Case: Disunno v. WRH Props., LLC, NY Slip Op 05719 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Rear-end collisions.

Friday, August 10, 2012

Judicial review of arbitration awards.

Practice point: Judicial review of arbitration awards is extremely limited.

Student note: The award can be vacated pursuant to CPLR 7511(b)(1)(iii) if it is clearly violative of a strong public policy, if it is totally or completely irrational, or if it manifestly exceeds a specific, enumerated limitation on the arbitrator's power. In addition, it may be vacated if the court finds that a party's rights were prejudiced by corruption, fraud or misconduct in procuring the award, pursuant to CPLR 7511[b][1][i].

Case: Matter of Cusimano v. Strianese Family Ltd. Partnership, NY Slip Op 05633 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Warranty of habitability.

Thursday, August 9, 2012

Homeowners' liability under the Labor Law.

Practice point:  Labor Law §§ 240 and 241 provide an exemption for owners of single and two-family houses, and liability can only be imposed where the homeowner directs or controls the work being performed.

Student note: "Direction and control" of the work is strictly construed to mean that the homeowner oversees the method and manner of the work being performed.

Case: Tomecek v. Westchester Additions & Renovations, Inc., NY Slip Op 05624 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Judicial review of arbitration awards.

Wednesday, August 8, 2012

Constructive trusts.

Practice point: In order to obtain the remedy of a constructive trust, a plaintiff generally is required to demonstrate four factors: (1) a fiduciary or confidential relationship between the parties; (2) a promise; (3) a transfer of some asset in reliance upon the promise; and (4) unjust enrichment flowing from the breach of the promise.

Student note: To achieve equity and avoid unjust enrichment, the courts apply these factors flexibly rather than rigidly.

Case: Mei Yun Chen v. Mei Wan Kao, NY Slip Op 05616 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Homeowners’ liability under the Labor Law.

Tuesday, August 7, 2012

Making out a fraud claim.

Practice point: The cause of action will not lie where the only fraud claimed arises from the breach of a contract. A mere misrepresentation of an intent to perform under the contract is insufficient to sustain a cause of action to recover damages for fraud.

Student note: Conversely, a misrepresentation of material fact that is collateral to the contract and serves as an inducement for the contract is sufficient to sustain the cause of action.

Case: Gorman v. Fowkes, NY Slip Op 05614 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Constructive trusts.

Monday, August 6, 2012

Petitioning for judicial dissolution.

Practice point: BCL § 1104-a gives holders of 20% or more of the outstanding voting shares of a close corporation the right to petition for judicial dissolution as a remedy for illegal, fraudulent or oppressive conduct. However, pursuant to § 1118(a), the petition triggers the right of any other shareholder or shareholders or the corporation to elect to purchase the petioners' shares at their fair value.

Student note: This election, once made, is irrevocable.

Case: Ferolito v. Vultaggio, NY Slip Op 05707 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Making out a fraud claim.

Friday, August 3, 2012

Unlicensed home-improvement contractors.

Practice point: Administrative Code of the City of New York § 20-387 forbids the soliciting, canvassing, selling, performance, or obtaining of "a home improvement contract as a contractor or salesperson from an owner without a license therefor." Accordingly, an unlicensed home improvement contractor cannot recover for services rendered either on the contract or in quantum meruit.

Student note: This provision of the Administrative Code does not itself provide grounds for plaintiff to recoup fees already paid, because the law renders the contract rescinded and generally the parties should be left as they are. However, plaintiff retains the right at common law to seek restitution for payments she previously made for work that defendant failed to perform or for defective work.

Case: Wildenstein v. 5H & Co., Inc., NY Slip Op 05702. (1st Dept. 2012).

Here is the decision.

Monday’s issue: Petitioning for judicial dissolution.

Thursday, August 2, 2012

Serving a late notice of claim.

Practice point: Service of a late notice of claim without leave of court is a nullity.

Student note: Moreover, the failure to seek a court order excusing such lateness within one year and 90 days after accrual of the claim requires dismissal of the action.

Case: Plaza v. New York Health and Hosps. Corp., NY Slip Op 05598 (1st Dept. 2012).

Tomorrow’s issue: Unlicensed home-improvement contractors.

Wednesday, August 1, 2012


Practice point: The court properly exercised jurisdiction over defendants-appellants, pursuant to CPLR 302(a)(1). Proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.

Student note: Contrary to defendants-appellants' contention, there was no need to establish a formal agency relationship between them and the other defendants, since it was shown that the other defendants acted purposely in New York for their benefit and with their knowledge and consent, and that defendants-appellants exercised some control over the other defendants in the matter. Defendant Kagalovsky's negotiation of the partnership agreement in New York and defendant Iota LP's subsequent actions in New York, including its commencement of an action in federal court in New York based on the partnership agreement, are sufficient to show that defendants-appellants, through an agent, transacted business within the state (CPLR 302[a][1]).

Case: New Media Holding Co. LLC v. Kagalovsky, NY Slip Op 05597 (1st Dept. 2012).

Tomorrow’s issue: Serving a late notice of claim.