The First Department denied petitioner's request for a preliminary injunction enjoining respondents from importing and marketing a certain product, and from disclosing or using any confidential information which had been obtained in their business relationship, in OraSure v. Prestige Brands Holdings, which was decided on July 12, 2007.

The court noted that, in order to merit injunctive relief, petitioner was required to make a clear showing that (1) it would likely succeed on the merits, (2) it will suffer irreparable injury unless the relief sought is granted, and (3) the balancing of equities is in its favor. Here, petitioner's damages were calculable, and, as a matter of law, a monetary harm which can be compensated by damages does not constitute irreparable injury.

Made in New York.

Defendant is a Pennsylvania lawyer who was retained by a New York resident to represent him in a probate matter in Connecticut. Defendant collected more than $400,000 in legal fees and allegedly appropriated a $200,000 "success fee" from the proceeds of a settlement which defendant procured. After his death, the client's estate commenced this action to recover a substantial portion of the legal fees, alleging that they were excessive. The estate also seeks the return of the success fee. The First Department denied defendant's motion to dismiss for lack of personal jurisdiction, in Scheuer v. Schwartz, which was decided on July 5, 2007. Even though the retainer agreement was not executed in New York, the court found that, in performing the agreement, defendant's contacts with New York were sufficient to merit long-arm jurisdiction pursuant to CPLR 302(a)(1). The court noted that defendant made at least ten trips to New York in connection with the matter, and that, among other things, he reviewed documents in the offices of his client's former attorneys and had several meetings with both his client and his client's adversaries in the probate proceeding. Defendant billed approximately 70 hours for work performed in New York, representing approximately 8% of the approximate 824 total hours billed for the Connecticut matter.

In this personal injury matter, plaintiff offered a new theory of negligence by way of a supplemental bill of particulars, which was served without leave of the court and after the note of issue had been filed. The Second Department said it was too late, in Medina v. Sears, Roebuck, which was decided on June 26, 2007. Noting that a plaintiff may successfully oppose a summary judgment motion by relying on an unpleaded cause of action which is supported by plaintiff's submissions, the court said that the "protracted delay" in this instance warranted dismissal.

Extortion with an E.

There is no private cause of action for extortion or attempted extortion, according to the First Department, in Minnelli v. Soumayah, which was decided on June 28, 2007. In dismissing that cause of action, in which plaintiff had alleged that defendant had compelled her to deliver money to him by threatening physical harm to plaintiff and her employees, the court observed that "extortionate behavior, coercion and duress may be elements of a cause of action for tortious interference with contract or unjust enrichment." The court also said that a mere threat, without something forcing the other party to give in to a further demand, is insufficient to make out a cause of action sounding in economic duress.

Pursuant to a contract, plaintiff markets, sells, and distributes defendant's beverages to retail outlets in a specifically designated geographic area of Manhattan. He brought a breach of contract action after defendant entered into agreements to directly sell its products to public schools and certain municipal entities. The Second Department dismissed the complaint, in McGuckin v. Snapple Distribs., Inc., which was decided on June 26, 2007. The court found that the contract, by its express terms, allowed defendant to market, sell, and distribute products to institutional accounts such as public schools and municipal entities. That was enough for the court, which said that the contact should be given effect according to its plain meaning.

Plaintiff was stuck in an elevator in the building where he worked as a porter. Against the building's superintendent's express directions, plaintiff climbed out of the elevator and was injured when the elevator began to move again. Plaintiff was terminated and, at an unemployment hearing, it was determined that plaintiff had been fired for misconduct in disobeying his building superintendent's direct order. That finding did not preclude plaintiff's suing for his injuries, though, according to the First Department, in Pelzer v. Transel Elevator & Electric, which was decided on June 28, 2007. The court noted that administrative agency determinations are binding in subsequent legal actions for purposes of issue preclusion, but only as to the precise issues which the agency decided. Here, the agency's finding was limited to the matter of plaintiff's misconduct, and did not address the issues of sole proximate cause and assumption of risk, which were pivotal to the subsequent lawsuit.

Plaintiff alleged (1) a failure to pay commissions as required by his written employment contract with defendant-LLC, a New York corporation with its principal place of business in New York City, and (2) certain violations of the Labor Law. In Fieldman v. Smart Choice Communications, which was decided on June 28, 2007, the First Department said that the contract's New Jersey choice-of-law provision runs to the Labor Law causes of action since they did not assert "an extra-contractual wrong, such as payment of commissions in accordance with the contract but in violation of section 191(a)(1)(c) because made less frequently than once a month."

What's in a name?

Avon did not misappropriate the name of the landlord's building in violation of the parties' agreement, according to the First Department, in Avon Products v. Solow, which was decided on June 28, 2007. "Although two of the four documents relied upon by Solow tend to show that Avon did refer to the building as the 'Avon Building' in communications to persons outside the Avon organization, that is not sufficient to establish Avon's misappropriation of the building's name. The remaining two documents, letters to Diesel Construction and the New York City Board of Trade, are inconsequential and could not reasonably have been viewed as tipping the balance in Solow's favor."

There is no case posted today because of the holiday. Happy July 4th to my fellow Vietnam veterans, and to veterans of every stripe, and to the men and women who serve to keep us free.

Plaintiff was employed by a nonparty subcontractor at a construction site when, acting on his employer's instructions, he used a wood beam to support the jib of a crane, and was injured when the beam struck him. The Second Department dismissed the complaint against the general contractor, in McLeod v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., which was decided on June 26, 2007. The court said that, to be liable under Labor Law § 200 or for common law negligence, a general contractor must have actually exercised supervision and control over the work performed at the site. Here, the court found only general supervisory authority for the purpose of overseeing the progress of the work and inspecting the work product, which is insufficient to impose liability.

The First Department found that jurisdiction was demonstrated by plaintiff's affidavit of service showing delivery to a person of suitable age and discretion
at -- and a mailing to -- a place which defendant acknowledged was his place of business, in Kunio Takeuchi v. Silberman, which was decided on June 28, 2007. The court found it of no consequence that, for reasons of health, defendant may not have actually been at his place of business for some four months prior to service, and that plaintiffs never tried to ascertain whether he was available to receive service there. "Unlike CPLR 308(4), CPLR 308(2) does not require preliminary diligent attempts at alternative methods of service."