Applications for leave to discontinue.

Practice point: An application for leave to discontinue an action without prejudice is addressed to the legal, not the arbitrary, discretion of the court, and thus should be granted unless there are reasons which would justify its denial.

Student note: The general rule is that plaintiff should be permitted to discontinue the action unless defendant would be prejudiced thereby.

Case: Wells Fargo Bank, N.A. v. Fisch, NY Slip Op 00732 (2d Dept. 2013).

Here is the decision.

Tuesday’s issue: Mutual mistake and contract law.

Workers' Compensation Law.

Practice point: The protection that is afforded to employers by §§ 11 and 29(6) extends to the employing entity's alter egos. A defendant moving for summary judgment based on the exclusivity defense of the Workers' Compensation Law under this theory must show, prima facie, that it was the alter ego of the plaintiff's employer.

Student note: A defendant may establish itself as the alter ego by demonstrating that one of the entities controls the other, or that the two operate as a single integrated entity.

Case: Qyizhpe v. Luvin Constr. Corp., N.Y. Slip Op 00728 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Applications for leave to discontinue.

Attorney deceit.

Practice point: Plaintiff alleged that, in plaintiff's divorce action, defendant submitted to the court a document with a page intentionally switched to conceal the unreliability of certain projections relating to a start-up company, founded by plaintiff, in which he and his former wife held a minority interest. This single alleged act of deceit was not sufficiently egregious to support a claim under Judiciary Law § 487(1).

Student note: In addition, plaintiff failed to allege damages resulting from the switching of the page. He claims that he had to settle with his former wife to avoid expensive and potentially protracted litigation as to the value of the allegedly worthless stock. However, the complaint alleges that the dispute over the value of the stock arose when defendants retained a second appraiser, who was given a correct copy of the document and attributed substantial value to the stock. Therefore, plaintiff did not allege that the settlement he entered into with his former wife was the proximate result of defendant's alleged deceit.

Case: Strumwasser v. Zeiderman, NY Slip Op 00556 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Workers' Compensation Law.

Discovery, and Facebook

Practice point: Plaintiff's mere possession and use of a Facebook account is not enough to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the use of the account..

Student note: To warrant discovery, defendants must establish a factual predicate by identifying relevant information in the account, such as something that contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses.

Defendants' argument that plaintiff's Facebook postings may reveal daily activities that contradict or conflict with the disability claim is nothing more than a request for permission to conduct a fishing expedition.

Case: Tapp v. New York State Urban Dev. Corp., NY Slip Op 00547 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Attorney deceit.

Agency and Labor Law.

Practice point: Under the Labor Law, a party is deemed to be an agent of an owner or general contractor when it has supervisory control and authority over the work being done where a plaintiff is injured. To impose liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition. Thus, a defendant's potential liability is based on whether it had the right to exercise control over the work, not whether it actually exercised that right.

Student note: Once an entity becomes an agent under the Labor Law it cannot escape liability to an injured plaintiff by delegating the work to another entity.

Case: Samaroo v Patmos Fifth Real Estate, Inc., NY Slip Op 00472 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Discovery, and Facebook.           

Changing venue.

Practice point: A demand to change venue based on the designation of an improper county, pursuant to CPLR 510[1], must be served with the answer or before the answer is served, pursuant to CPLR 511[a].

 Student note: If the motion is made after the answer is served, its disposition is left to the Court’s discretion.

Case: Carobert v. Baldor Elec. Co., NY Slip Op 00449 (2d Dept. 2013).

Here is the decision.

Monday’s issue: Agency and Labor Law.

Emotional distress without physical harm, and motions to dismiss.

Practice point: New York courts have been reluctant to recognize claims grounded in negligence when the damages are solely emotional. While in some cases a cause of action sounding in negligence may lie solely to recover damages for emotional injuries in the absence of physical harm, no New York case has recognized a theory of recovery so broad as the plaintiff asserted here. Essentially, the plaintiff contended that she is entitled to recover damages for emotional distress, because, as a result of the defendant's alleged negligent failure to inform her that the she was pregnant, she feared that her unborn child might be harmed. No such claim is recognized under New York, and the complaint was dismissed for failure to state a cause of action.

Student note: A court deciding a  CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action must accept the allegations in the complaint as true and accord the plaintiff every possible favorable inference from them. The motion must be granted when the allegations and inferences do not fit within any cognizable legal theory.

Case: Nadal v. Jaramillo, NY Slip Op 00314 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Changing venue.

Making time of the essence.

Practice point:  A letter from the plaintiff-buyer’s attorney to the defendant-seller’s attorney advised that the buyer was prepared to close "on any date . . . within the next ten days," and that the buyer would make himself available "at any time and location so designated by you." The letter also asked the seller’s attorney to contact the buyer’s attorney within the next ten days to schedule a closing date. Contrary to the plaintiff's contention, the letter was held to be nothing more than a mere demand that the defendant fix a closing date. It was inadequate to make time of the essence because it did not clearly and distinctly set a new date and time for closing, and it did not inform the defendant that he would be considered in default if he did not perform by a given date.

Student note: Since there was never a time of the essence closing, nor even a future scheduled closing date, it could not be concluded that the seller willfully defaulted or was unable to tender performance.

Case: Latora v. Ferreira, NY Slip Op 00309 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Emotional distress without physical harm, and motions to dismiss.

At-will employment and fraudulent inducement.

Practice point: A plaintiff who is offered only at-will employment cannot establish reasonable reliance on a prospective employer's representations, which is an element necessary to the recovery of damages under a theory of fraudulent inducement.

Student note: The at-will employment doctrine bars the cause of action even where the circumstances pertain to a plaintiff's acceptance of an offer of a position rather than termination.

Case: Guido v. Orange Regional Med. Ctr., NY Slip Op 00305 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Making time of the essence.

Discovery.

Practice point:  Sanctions were inappropriate because plaintiff waived his right to challenge deficiencies in defendant's responses to discovery orders by filing a note of issue and certificate of readiness representing that all discovery had been completed and that there were no outstanding discovery requests.

Student note: In any event, denial of the motion to strike would not have constituted an abuse of discretion, given that the defendant ultimately complied with the order to produce its employee a month after the court-ordered deadline, and the defendant’s conduct during pre-note of issue discovery proceedings did not amount to willful and contumacious behavior. The court properly considered the defendant’s opposition papers, given that plaintiff did not show prejudice by the late service, and had, in fact, submitted reply and supplemental reply affirmations.

Case: Marte v. City of New York, NY Slip Op 00387 (1st Dept. 2013).

Here is the decsion.

Tomorrow’s issue: At-will employment and fraudulent inducement.

Falls on snow or ice.

Practice point: A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it.

Student note: A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected. To meet its initial burden on the issue of lack of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.

Case: Feola v. City of New York, NY Slip Op 00304 (2d Dept. 2013).

Here is the decision.

Monday’s issue: Discovery.