Thursday, January 31, 2013

Piercing the corporate veil.

Practice point: One of the primary legitimate purposes of incorporating is to limit or eliminate the personal liability of corporate principals.. Nevertheless, equity will intervene to pierce the corporate veil and permit the assertion of claims against the individuals who control the corporation in order to avoid fraud or injustice.Piercing the corporate veil requires a showing that the individual defendants exercised complete dominion and control over the corporation and used such dominion and control to commit a fraud or wrong against the plaintiff which resulted in injury.

Student note: The mere claim that the corporation was completely dominated by the defendants, or conclusory assertions that the corporation acted as their alter ego, without more, will not suffice to support the equitable relief of piercing the corporate veil.

Case: Flushing Plaza Assoc. #2 v. Albert, NY Slip Op 00177 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Falls on snow or ice.

Wednesday, January 30, 2013

Process servers' affidavits.

Practice point: The process server's affidavit of service constituted prima facie evidence of proper service pursuant to CPLR 308(2). In support of his motion to dismiss, the defendant offered an affidavit denying service, but he failed to swear to specific facts to rebut the statements in the process server's affidavit. As such, no hearing was necessary to determine whether service was proper.

Student note: In any event, defendant’s motion was premature as it was made within the initial 120-day period provided for service in CPLR 306-b.. Since the plaintiff had the absolute statutory right to effect valid service at any point within the 120-day period following the filing of the summons and complaint, dismissal of the complaint prior to the expiration of that period would have been improper.

Case: Bank of N.Y. v. Scura, NY Slip Op 00166 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Piercing the corporate veil.

Tuesday, January 29, 2013

Summary judgment as to liability denied.

Practice point: Plaintiffs failed to make a prima facie showing of entitlement to partial summary judgment as a matter of law. The non-prosecution agreement entered into between the New York County District Attorney's Office (NYDA) and defendants-Bovis, following NYDA's criminal investigation of the 2007 fire at the Deutsche Building in lower Manhattan, was correctly deemed inadmissible as proof of liability. The agreement explicitly provided that Bovis had not admitted liability; that the factual statements contained in the agreement were relevant only for the purposes of the compromise between the NYDA and Bovis; and that Bovis could contradict and/or contest any factual statement in the agreement in a subsequent action or proceeding to which the NYDA was not a party.

Student note:Judicial estoppel, and even informal judicial estoppel, cannot be applied here. Bovis was not a party to any legal proceeding when it entered into the non-prosecution agreement, and the agreement and related documents amount to a pre-indictment settlement agreement that was neither judicially endorsed nor approved.

Case: Borst v. Bovis Lend Lease LMB, Inc., NY Slip Op 00265 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Process servers’ affidavits.

Monday, January 28, 2013

Worker's fall from a ladder.

Practice point: In evaluating a claim under Labor Law § 240(1), the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. It is well settled that failure to properly secure a ladder to insure that it remains steady and erect while being used constitutes a statutory violation. Plaintiff's testimony that the ladder he was using was both unsteady as he was ascending it and too short to enable him to reach the window he was cleaning establishes prima facie that defendants failed to provide him with an adequate safety device under Labor Law § 240(1) and that their failure proximately caused his injuries.

Student note: To rebut plaintiff's prima facie case, defendants asserted that plaintiff was negligent because he was on top of the ladder. However, because plaintiff established that no adequate safety device was provided, his own negligence, if any, is of no consequence.

Case: Cuentas v. Sephora USA, Inc., NY Slip Op 00257 (1st Dept. 2013).

Tomorrow’s issue: Summary judgment as to liability denied.

Friday, January 25, 2013

Declaratory judgments, and motions to dismiss.

Practice point: Pursuant to CPLR 3001, the Supreme Court may render a declaratory judgment as to the rights and other legal relations of the parties to a justiciable controversy. The demand for relief in the complaint shall specify the rights and other legal relations on which a declaration is requested, pursuant to CPLR 3017[b]. A motion to dismiss the complaint in an action for a declaratory judgment presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration.

Student note: Therefore, where a cause of action is sufficient to invoke the court's power to render a declaratory judgment, a motion to dismiss that cause of action should be denied.

Case: DiGiorgio v. 1109-1113 Manhattan Ave. Partners, LLC, NY Slip Op 00172 (2d Dept. 2013).

Monday’s issue: Worker’s fall from a ladder.

Thursday, January 24, 2013

Notices of claim.

Practice point: Timely and proper service of a notice of claim which, among other things, sufficiently identifies the claimant, states the nature of the claim, and describes the time when, the place where and the manner in which the claim arose, is a condition precedent to the commencement of a common-law tort action against a municipality, pursuant to General Municipal Law § 50-e[2].

Student note:The test of the notice's sufficiency is whether it includes information sufficient to enable the city to investigate the claim. Although General Municipal Law § 50-e(6) permits correction of good faith, nonprejudicial, technical mistakes, defects or omissions, it does not authorize substantive changes in the theory of liability.

Case: Tully v. City of Glen Cove, NY Slip Op 00076 (2d Dept. 2013).

Tomorrow’s issue: Declaratory judgments and motions to dismiss.

Wednesday, January 23, 2013


Practice point: Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading.

Student note: Recognizing that striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct, courts will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness. Precluding a party from presenting evidence at trial is also a drastic sanction which generally requires a showing that a party's lack of cooperation with discovery was willful, deliberate, or contumacious. Less severe sanctions for spoliation of evidence are appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her defense or case.

Case: Jennings v. Orange Regional Med. Ctr., NY Slip Op 00064 (2d Dept. 2013).

Tomorrow’s issue: Notices of claim.

Tuesday, January 22, 2013

Slips and falls.

Practice point: A plaintiff's inability to identify the cause of the fall is fatal to the action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Student note: Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a slip and fall accident, any determination by the trier of fact as to causation would be based upon sheer conjecture.

Case: Dennis v. Lakhani, NY Slip Op 00061 (2d Dept. 2013).

Tomorrow’s issue: Spoilation.

Monday, January 21, 2013

Court holiday.

The courts are closed today.

Tomorrow's issue: Slips and falls.

Friday, January 18, 2013

An account stated.

Practice point: An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due.  An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time or makes partial payment on the account.

Student note: Here, the affidavit of the plaintiff's project manager stated that, when the defendant was contacted about payment, she stated that she never authorized the plaintiff to do work in her home and did not intend to pay the plaintiff. In addition, the plaintiff's project manager averred that "not even a single payment was ever received," even though the defendant had been billed for the plaintiff's services. These submissions were insufficient to establish, as a matter of law, that the defendant retained the subject invoices for an unreasonable period of time without objecting to them, or that she made partial payment on the invoices.

Case: Branch Servs., Inc. v. Cooper, NY Slip Op 00058 (2d Dept. 2013).

Tuesday’s issue: Slips and falls.

Thursday, January 17, 2013

Appellate practice.

Practice point: It is the obligation of the appellant to assemble a proper record on appeal. An appellant's record must contain all of the relevant papers that were before the Supreme Court, pursuant to CPLR 5526.

Student note: Here, the record on appeal was inadequate. The appellants failed to include the order to show cause by which they moved to vacate the subject foreign judgment and any of the other related papers, including affirmations in support of and in opposition to the motion. These omissions rendered meaningful appellate review of the Supreme Court's determination virtually impossible.

Case: Barretti v. Solucorp Indus., Ltd.., NY Slip Op 00054 (2d Dept. 2013).

Tomorrow’s issue: An account stated.

Wednesday, January 16, 2013

Pushed around at a rock concert.

Practice point: Defendants met their initial burden of showing that they provided adequate security measures at Ozzfest 2006, an outdoor concert held on Randall's Island. They submitted evidence showing that meetings were held with the NYPD to assess the security plans proposed, and that they ultimately provided 215 personnel to secure the concert, the attendance of which was about 10,000 to 12,000, and that such security would have been sufficient for a crowd of 30,000. Plaintiffs offered no evidence, expert or otherwise, to show that such security was inadequate,

Student note: Contrary to plaintiff's contention, the court found no evidence in the record to show that the unidentified person who shoved plaintiff was actually engaged in dangerous moshing or slam dancing, and plaintiff himself testified that he was unsure whether his injury was due to an intentional push or someone simply bumping into him. In any event, that unidentified nonparty caused plaintiff's fall, and under the circumstances here, defendants will not be liable for such unforeseen conduct.

Case: Marrero v. City of New York, 00015 (1st Dept. 2013).

Tomorrow’s issue: Appellate practice.

Tuesday, January 15, 2013

A claim on a note and loan agreement.

Practice point: Defendants' argument that performance under the note and loan agreement was frustrated by plaintiff's failure to make timely reimbursement of certain marketing expenses it submitted in accordance with the loan agreement's reimbursement provisions raises a defense that lies outside the making of the note and the obligations thereunder. While defenses might raise issues outside the note, that does not change its character as one for the payment of money only. Such a defense, which rests upon an apparent claim of breach of a loan agreement provision regulating the availability of certain loan proceeds for marketing purposes, is separate from defendants’ unequivocal and unconditional obligation to repay the monies it was loaned.

Student note: To the extent that the breach of contract defense may amount to a viable claim, it may be asserted in a separate action.

Case: German Am. Capital Corp. v. Oxley Dev. Co., LLC, NY Slip Op 00014 (1st Dept. 2013).

Tomorrow’s issue: Pushed around at a rock concert.

Monday, January 14, 2013

In pari delicto.

Practice point: The doctrine mandates that the courts will not intercede to resolve a dispute between two wrongdoers.

Student note: The justice of the rule is most obvious where a willful wrongdoer is suing someone who is alleged to be merely negligent, but it also applies where both parties acted willfully.

Case: Concord Capital Mgt., LLC v. Bank of America, N.A., NY Slip Op 00011 (1st Dept. 2013).

Tomorrow’s issue: A claim on a note and loan agreement.

Friday, January 11, 2013

Defective sidewalks.

Practice point: Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner. The language of section 7-210 mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code sections 19-152 and 16-123.

Student note: Although section 7-210 of the Administrative Code does not define the term "sidewalk," section 19-101(d) of the Administrative Code describes a sidewalk as "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians."

Case: Stoloyvitskaya v. Dennis Boardwalk, LLC, NY Slip Op 09047 (2d Dept. 2012).

Monday’s issue: In pari delicto.

Thursday, January 10, 2013

Proper service.

Practice point: The plaintiff presented prima facie proof that service was effected on a partner in the defendant-law firm, by personally delivering a copy of the summons with notice to a paralegal at the firm’s office, which was the partner's actual place of business, and then mailing a copy of it to the partner at the office in an envelope marked “personal and confidential” and not indicating that the communication was from an attorney or concerned a legal action. This service was sufficient to confer personal jurisdiction over the firm, which is a limited liability partnership, since service was properly effected upon one of its partners, pursuant to CPLR 308[2]; 310-a.

Student note: Although the firm alleges that only one copy of the summons with notice was left with the paralegal, this was not a jurisdictional defect, since such notice was reasonably calculated, under all the circumstances, to apprise the partner,  and hence the firm, of the pendency of the action and afford the firm an opportunity to present its objections and defenses.

Case: Green v. Gross & Levin, LLP, NY Slip 09027 (2d Dept. 2012).

Tomorrow’s issue: Defective sidewalks.

Wednesday, January 9, 2013

The storm-in-progress rule.

Practice point:  Under the rule, neither a landlord nor a snow removal contractor will be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter. Here, the defendant established its prima facie entitlement to judgment as a matter of law by producing evidence that the accident occurred while a snow storm either was in progress or had just stopped.

Student note: Contrary to the plaintiff's contention, the speculation of the defendant's former employee, who had been employed as a porter for the defendant, that when round salt mixes with frozen rain "it's a little bit slippery," did not raise a triable issue of fact as to whether the defendant's snow removal efforts created or exacerbated a dangerous condition.

Case: Smiloqitz v. GCA Serv.Grp., Inc., NY Slip Op 09044 (2d Dept. 2012).

Tomorrow’s issue: Proper service.

Tuesday, January 8, 2013

Damages for wrongful death.

Practice point: In an action to recover damages for wrongful death, the measure of damages includes fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought, pursuant to EPTL 5-4.3[a].

Student note:  The essence of the cause of action is that the plaintiff's reasonable expectancy of future assistance or support by the decedent was frustrated by the decedent's death, and so loss of support, voluntary assistance and possible inheritance, as well as medical and funeral expenses incidental to death, are injuries for which damages may be recovered.

Case: Johnson v. Richmond Univ. Med. Ctr., NY Slip Op 09033 (2d Dept. 2012).

Tomorrow’s issue: The storm-in-progress rule.

Monday, January 7, 2013

A health club's liability, and the Good Samaritan law.

Practice point: General Business Law § 627-a (1) requires health clubs to have an automated external defibrillator device (AED) on site, and at least one individual who holds a valid certification of completion of a course in operation of AEDs and in CPR.

Student note: The club was not be vicariously liable for breaching a common-law duty of care that its employees assumed by coming to plaintiff's aid as "Good Samaritans." Since the employees were providing emergency medical treatment to plaintiff, they could only have been liable for gross negligence, pursuant to Public Health Law § 3000-a [1].

Case: Chappill v. Bally Total Fitness Corp., NY Slip Op 09162 (1st Dept. 2012).

Tomorrow’s issue: Damages for wrongful death.

Friday, January 4, 2013

Breach of contract.

Practice point: Dismissal of the breach of contract counterclaims was required, inasmuch as the parties agreed that there would be no binding agreement until their execution of a written contract, but no such contract was ever executed.

Student note: The freedom to contract includes the freedom to avoid oral agreements, a  freedom that is especially important when business entrepreneurs and corporations engage in substantial and complex dealings. New York courts will allow sophisticated parties operating in the business world to decide when and how they wish to enter into legally enforceable contracts.

Case: StarVest Partners II, L.P. v. Emportal, Inc., NY Slip Op 09145 (1st Dept. 2012).

Monday’s issue: A health club’s liability, and the Good Samaritan law.

Thursday, January 3, 2013


Practice point: There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by a party, pursuant to CPLR 3101[a][1]. The words “material and necessary" will be interpreted liberally 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.

Student note: The test to be employed by the courts in weighing whether material is discoverable is one of usefulness and reason.

Case: D’Ambrosio v. Racanelli, NY Slip Op 09022 (2d Dept. 2012).

Tomorrow’s issue: Breach of contract.

Wednesday, January 2, 2013


Practice point: The Supremacy Clause grants Congress the power to preempt state law. Within Constitutional limits, then, Congress may preempt state authority by so stating in express terms.

Student note: In the absence of explicit statutory language, preemption can be implied under field preemption where a review of federal legislation indicates that Congress intended federal law to fully occupy that field, or pursuant to conflict preemption where a state law is in conflict with federal law so that it would be impossible for a party to comply with both.

Case: Biscone v. JetBlue Airways Corp., NY Slip Op 09019 (2d Dept. 2012).

Tomorrow’s issue: Discovery.

Tuesday, January 1, 2013

Court holiday.

The courts are closed to mark New Year's Day.

Thank you for your support during the year just past, and best wishes for a happy and productive new year.

Tomorrow's issue: Preemption.