The work product privilege.

Practice point: Work product is privileged, and that privilege extends to experts retained as consultants to assist in analyzing or preparing the case. However, protection runs only to facts and observations disclosed by the attorney. Thus, it is the information and observations of the attorney that are conveyed to the expert which may be subject to trial exclusion. The privilege does not insulate other disclosed information from public exposure.

Student note: To the extent that any portion of the reports prepared by the forensic analyst is attorney work product, the privilege protects the reports notwithstanding that the analyst reviewed the reports prior to his deposition.

Case: Beach v. Touradji Capital Mgt., LP, NY Slip Op 06004 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Day care and the duty of care.

Labor Law.

Practice point: The engineer's contractual duty to visit the site "at periodic intervals" to determine if construction was in accordance with plans and specifications, is insufficient by itself to hold the engineer liable under Labor Law § 240(1) and § 241(6), and there is no evidence otherwise to indicate that the engineer had the authority to direct or control the work at issue.

Student note: Since the defective condition was latent and not visibly apparent, the fact that the owners were frequently present at the accident site, even for prolonged periods of time, is insufficient to establish constructive notice.

Case: Lopez v. Dagan, NY Slip Op 05999 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: The work product privilege.

Consumer protection from bad actors.

Practice point: General Business Law article 22-A, entitled "Consumer Protection from Deceptive Acts and Practices," and which includes General Business Law §§ 349 and 350, deals with practices which have a broad impact on consumers at large. There is no private cause of action, originating in a contractual dispute, based on the statute.

Student note: To successfully assert a claim under General Business Law §§ 349 or 350, a party must allege that its adversary has engaged in consumer-oriented conduct that is materially misleading, and that the party suffered injury as a result of the allegedly deceptive act or practice.

Case: Yellow Book Sales & Distrib. Co., Inc. v. Hillside Van Lines, Inc., NY Slip Op 06022 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Labor Law.

Court holiday.

The courts are closed to mark the Labor Day holiday.

Tomorrow's issue: Consumer protection from bad actors.

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.

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.

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.

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.

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.

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.

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.