Monday, July 31, 2017

A hearing on an application for the award of attorney's fees.

Practice point:  The plaintiff waived his right to a hearing on the defendant's application by agreeing that, although "each party retains the right to appeal any order of this court with respect to counsel fees," the parties' respective applications for an award of an attorney's fee would be "done simultaneously without a right to oppose or reply."

Case:  Fishman v. Solomon, NY Slip Op 05581 (2d Dep't July 12, 2017)

Here is the decision.

Tomorrow's issue:  A claim for injuries caused by a domestic animal.

Friday, July 28, 2017

A breach of contract claim.

The law office-defendant, an LLC, opened an IOLA account with the bank-plaintiff and deposited a purported client's cashier's check into the account. Shortly thereafter, the client, through the law office, directed that the majority of the funds be wired to two international parties. Although the bank's business deposit accounts brochure says that a transfer of more than $5,000 out of a new account will be made only after nine business days, the money was wired out of the account before the ninth business day, after the bank's employees had verified by telephone with the clearinghouse bank that the check had cleared. A few days later, it was discovered that the check was fraudulent.

Practice point:  The breach of contract claim was dismissed as against the lawyer because he is not the named customer on the bank account, and there is no basis for holding him liable in the documents that comprise the application to open the account. The negligence cause of action also was dismissed as against him. Limited Liability Company Law § 1205(a) makes an LLC's member liable for negligence in the furnishing of services, that is, malpractice. Here, however, neither the lawyer nor the LLC were providing personal services to the bank; they were acting as its customer. Additionally, there are no allegations otherwise supporting a personal claim against the lawyer based on piercing the corporate veil.

Case:  Metropolitan Commercial Bank v. Levy, NY Slip Op 05505 (1st Dep't July 6, 2017)

Here is the decision. 

Tomorrow's issue:  A hearing on an application for the award of attorney's fees.

Thursday, July 27, 2017

Forum selection clauses.

Practice point:  Where a contracting party has agreed to submit to the jurisdiction of a court, that party is precluded from disputing the court's jurisdiction on the grounds of forum non conveniens.

Case:  Honeywell Intl. Inc. v. ARC Energy Servs., Inc. NY Slip Op 05686 (1st Dep't July 13, 2017)

Here is the decision. 

Tomorrow's issue:  A breach of contract claim.

Wednesday, July 26, 2017

An alleged breach of the employer's fiduciary duty.

Practice point:  An employer-employee relationship, without more, does not give rise to a fiduciary duty.

Case:  Brook v. Peconic Bay Med. Ctr., NY Slip Op 05681 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  Forum selection clauses.

Tuesday, July 25, 2017

An emailed settlement agreement.

The Appellate Division reversed the motion court and granted defendant's motion to enforce the settlement agreement. The emails between the parties' counsels counsel sufficiently set forth an enforceable agreement to settle plaintiffs' claims, and plaintiff's counsel, who had authority to bind the plaintiff, accepted the defendant's offer..

Practice point:  Counsel typed his name at the end of the email accepting defendants' offer, which satisfied CPLR 2104's requirement that settlement agreements be in a writing subscribed by the party or the party's attorney.

Case:  Jimenez v. Yanne, NY Slip Op 05677 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  An alleged breach of the employer's fiduciary duty.

Monday, July 24, 2017

An affidavit submitted in oppositon to summary judgment.

Practice point:   The motion court may consider the affidavit even though it is notarized out-of-state and lacks a certificate of conformity, pursuant to CPLR 2309(c).

Case:  Redlich v. Stone, NY Slip Op 05676 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  An emailed settlement agreement.

Friday, July 21, 2017

Motions to compel or stay arbitration.

Practice point:  On the motion, the court will first determine whether the parties have agreed to submit their disputes to arbitration, and, if so, whether this dispute comes within the scope of their agreement.  The court will apply ordinary state-law principles that govern the formation of contracts.

Case: Degraw Constr. Group, Inc. v. McGowan Bldrs., Inc., NY Slip Op 05580 (2d Dep't July 12, 2017)  

Here is the decision.

Monday's issue:  An affidavit submitted in opposition to summary judgment.

Thursday, July 20, 2017

Documentary evidence and dismissal.

Practice point:  A motion to dismiss a complaint based upon documentary evidence under CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence for the purpose of a motion to dismiss, the evidence must be unambiguous and of undisputed authenticity. Affidavits, deposition testimony, and letters are not considered documentary evidence within the meaning of the statute. 

Case:  Board of Mgrs. of 100 Congress Condominium v. SDS Congress, LLC, NY Slip Op 05414 (2d Dep't July 5, 2017) 

Here is the decision. 

Tomorrow's issue:  Motions to compel or stay arbitration.

Wednesday, July 19, 2017

Conspiracy to commit fraud.

Practice point:  New York does not recognize a cause of action for conspiracy to commit fraud.

Case:  Maheras v. Awan, NY Slip Op 05309 (1st Dep't June 29, 2017)

Here is the decision. 

Tomorrow's issue:  Documentary evidence and dismissal.

Tuesday, July 18, 2017

Specific performance as to real property.

Practice point:  To prevail on a cause of action for specific performance of a contract for the sale of real property, a purchaser-plaintiff must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations; that the vendor was able to convey the property; and that there is no adequate remedy at law.

Case:  1107 Putnam, LLC v. Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., NY Slip Op 05411 (2d Dep't July 5, 2017)

Here is the decision.

Tomorrow's issue:  Conspiracy to commit fraud.

Monday, July 17, 2017

A defendant's cross-motion for summary judgment dismissing the complaint.

The plaintiff alleges that he was riding a bicycle in Queens when a minivan owned and operated by the defendant pulled out of a driveway and struck him. Later that evening, the plaintiff returned to the accident site, identified the minivan he believed was involved in the accident, and recorded its license plate number. The plaintiff commenced this action to recover damages for personal injuries. The defendant cross-moved for summary judgment dismissing the complaint, contending that the plaintiff's deposition testimony revealed that the plaintiff would be unable to prove that the defendant's vehicle was the vehicle involved in the accident. The Supreme Court denied the cross motion, concluding that the defendant had failed to establish, prima facie, that his vehicle was not involved in the accident. The Appellate Division affirmed.

Practice point:  A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case. Here, the defendant failed to make a prima facie showing of his entitlement to judgment as a matter of law because he offered no evidence to affirmatively demonstrate that his vehicle was not the vehicle that struck the plaintiff. Although the defendant pointed to alleged gaps in the plaintiff's proof revealed by the plaintiff's deposition testimony, this was insufficient to satisfy his initial burden. Since the defendant failed to sustain his prima facie burden, the Supreme Court properly denied his cross motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers.

Case:  Feldberg v. Skorupa, NY Slip Op 05199 (2d Dep't June 28, 2017)

Here is the decision

Tomorrow's issue:  Specific performance as to real property.

Friday, July 14, 2017

A claim of libel per se.

After the plaintiff installed a custom home theater system in the defendant's home, the defendant posted a review of the plaintiff's services on the Internet website The plaintiff commenced this action, alleging that the review constituted libel per se. The defendant moved to dismiss, pursuant to CPLR 3211(a)(7). The Supreme Court granted the defendant's motion, and the Appellate Division affirmed.

Practice point:  A libel action cannot be maintained unless it is premised on published assertions of fact.  Whether an allegedly defamatory statement constitutes actionable fact or nonactionable opinion is a question of law to be resolved by the courts. In resolving that question, rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the courts should consider the content of the communication as a whole, and look to the over-all context in which the assertions were made in order to determine  whether a reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff.

Here, given the context in which the challenged statements were made, and viewing the content of the review as a whole, a reasonable reader would believe that the review's writer was a dissatisfied customer who was expressing an opinion.

Case:  Crescendo Designs, Ltd. v. Reses, NY Slip Op 05198 (2d Dep't June 28, 2017)

Here is the decision.

Monday's issue:  A defendant's cross-motion for summary judgment dismissing the complaint.

Thursday, July 13, 2017

A landowner's duty of care.

Practice point:  A landowner has a duty to exercise reasonable care in maintaining the property in a safe condition under all circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property.  However, there is no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by persons using the property.

Case:  Commender v. Strathmore Ct. Home Owners Assn., NY Slip Op 05197 (2d Dep't June 28, 2017)

Here is the decision.

Tomorrow's issue:  A claim of libel per se.

Wednesday, July 12, 2017

An action in tort against the Transit Authority.

Practice point:  Service of a notice of claim within 90 days of accrual of the claim is a condition precedent to an action sounding in tort against the MTA and the Transit Authority.

Case:  Brunache v. MV Transp., Inc., NY Slip Op 05196 (2d Dep't June 28, 2017)

Here is the decision.

Tomorrow's issue:  A landowner's duty of care.

Tuesday, July 11, 2017

Precluding photos of an accident site.

In this personal injury action, plaintiff alleged that he was on foot, crossing the street, when he fell into a sinkhole.  Hi's theory of the case is that the City and its pavement restoration contractor, a third-party defendant, performed the work that resulted in the sinkhole.

At trial, the court precluded plaintiff from introducing into evidence photographs of the sinkhole, taken two weeks after the accident, finding that they did not fairly and accurately depict the way the accident site looked on the date of the accident.

The Appellate Division said that the trial court erred in precluding the photos.

Practice point:  Plaintiff authenticated the photos at his deposition, and testimony at trial could have explained how and why the scene depicted in the photos did or did not differ from  the site on the day of the accident. Excluding the photos meant that plaintiff was not able to show the jury the hole into which he allegedly fell.

Case:  Gonzalez v. City of New York, NY Slip Op 05180 (1st Dep't June 27, 2017)

Here is the decision.

Tomorrow's issue:  An action in tort against the Transit Authority.

Monday, July 10, 2017

Dismissal for lack of personal jurisdiction.

The Appellate Division reversed, and dismissed the complaint, finding that defendants did not conduct activities in New York, thereby invoking the benefits and protections of its laws and establishing personal jurisdiction. The telephone and email communications between the Latvian defendants and plaintiff's New York office, concerning a contemplated association in the acquisition of a Latvian bank, with no presence in New York, do not constitute the transaction of business in New York.

In addition, defendants never entered New York in connection with their dealings with plaintiff; the parties' electronic communications also ran between defendants and plaintiff's London office; plaintiff traveled to Latvia in connection with this matter; and, if the bank were acquired, the parties' contemplated association would be centered in Latvia.

Practice point:  Even if New York had personal jurisdiction existed over defendants, the Appellate Division would dismiss on the ground of forum non conveniens, in view of Latvia's being the principal situs of the underlying transaction, the pendency in Latvia of an earlier-filed action between the same parties concerning this dispute, and the likely applicability of Latvian law under a grouping-of-contacts analysis.

Case:  Ripplewood Advisors, LLC v. Callidus Capital SIA, NY Slip Op 05157 (1st Dep't June 22, 2017)

Here is the decision.

Tomorrow's issue:  Precluding photos of an accident site.

Friday, July 7, 2017

Discovery sanctions.

In this action for attorneys' fees and costs, the Appellate Division affirmed the money judgment and the denial of the motion to vacate the dismissal.

The plaintiffs failed to comply with a so-ordered stipulation that the complaint would be dismissed unless the plaintiffs responded to the defendants' demand for interrogatories and notice for discovery and inspection that had been outstanding for more than two years, despite several court orders directing a response. Upon the plaintiffs' failure to comply, the conditional order became final and a judgment was entered dismissing the complaint.

Case:  150 Centreville, LLC v. Lin Assoc. Architects, P.C., NY Slip Op 05056 (2d Dep't June 21 2017)

Here is the decision.

Monday's issue:  Dismissal for lack of personal jurisdiction.

Thursday, July 6, 2017

Claims for prima facie tort and tortious interference.

Practice point:  It is well settled that prima facie tort is not designed to provide a catch-all alternative for every cause of action that cannot otherwise stand on its own. A tortious interference claim will fail where plaintiff was not a party to any contract with a third party, or where plaintiff does not identify any damages apart from those for which he already has been compensated.

Case:  Britt v. City of New York, NY Slip Op 05154 (1st Dep't June 22, 2017)

Here is the decision.

Tomorrow's issue:  Discovery sanctions.

Wednesday, July 5, 2017

A fall at work.

The Appellate Division affirmed denial of defendant's motion for dismissal in this action where the plaintiff, a school employee, alleges that, while walking in a hallway, she slipped and fell on water after the floor had been mopped by a nonparty employee of the defendant.

The Appellate Division found that plaintiff's affidavit presents a triable issue of fact as to whether a there was a special employee relationship between the school and the nonparty employee.  Plaintiff set forth that no one from the school supervised his work or directed his daily schedule, and that the school did not provide him with equipment or a uniform.

Practice point:  The motion court properly considered plaintiff's affidavit, as it did not contradict her deposition testimony. In addition, plaintiff's deposition testimony and affidavit provide a non-speculative basis for her account of the accident, and sufficiently demonstrates a nexus between the hazardous condition and the circumstances of her fall, because she testified that immediately after she fell she saw that the floor was wet and that nearby there was a janitor's cart with wet floor signs attached to it.

Case:  Cartagena v. Access Staffing, LLC, NY Slip Op 05025 (1st Dep't June 20, 2017)

Here is the decision.

Tomorrow's issue: Claims for prima facie tort and tortious interference.

Tuesday, July 4, 2017

Court holiday.

                                         Our soldiers' lives and their families' tears.

                                            55 Water Street. Please visit some time.

Monday, July 3, 2017

A fall in the laundry room.

The Appellate Division reversed, and dismissed the complaint as against building owner-defendant in this action where plaintiff's decedent allegedly slipped and fell on a puddle of water in the laundry room of his apartment building. The decedent was deposed before he died. He testified that, as was his custom, on the day of the incident he went to the laundry room twice in the early morning hours. The first time, when he went to load some wet clothes into a dryer, he did not see any water on the floor. No one else was there, and no other machines were in use. He left without incident, and then returned to remove his clothes from the dryer. Again, no one else was there, and no machines were in use. The dryer had already come to a stop. He took his clothes from the dryer, and as he took one step away from the dryer,  he slipped and fell. After he fell, he saw, for the first time, that there was water on the floor.

Practice point:  In a slip-and-fall action, a defendant who moves for summary judgment has the initial burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had [actual or constructive notice of its existence. To provide constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it.

Here, the evidence submitted by the defendant in support of its motion, including the decedent's deposition testimony, was sufficient to establish, prima facie, that the defendant did not create the alleged hazardous condition or have actual or constructive notice of it. A general awareness that the laundry room floor could become wet  is legally insufficient to constitute constructive notice of the particular condition that allegedly caused the decedent to slip and fall.

Case:  Adamson v. Radford Mgt. Assoc., LLC, NY Slip Op 05057 (2d Dep't June 2, 2017)

Here is the decision.

Wednesday's issue:  A fall at work.