Monday, March 14, 2016

Failure to establish negligent misrepresentation, and a claim of ineffective assistance of counsel.

Practice point:  The Appellate Division affirmed the granting of defendant's CPLR 4401 motion for judgment as a matter of law made at the close of plaintiff's case, as, upon the evidence presented, there was no rational process by which the trier of fact could make a finding in favor of plaintiff. A cause of action alleging negligent misrepresentation requires a plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.  Here, plaintiff failed to establish the second two elements of her cause of action.

Student note:  The Appellate Division rejected plaintiff's contention that she was deprived of the effective assistance of counsel at trial.  In the context of civil litigation, a claim of ineffective assistance of counsel will not be entertained absent extraordinary circumstances, and, here,  plaintiff failed to establish the existence of any extraordinary circumstances to warrant entertaining such a claim.

Case:  Nugent v. Diocese of Rockville Ctr., NY Slip Op 01473 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Civil liability resulting from the operation of an emergency vehicle.