Laches and dismissal.

Practice point:  The doctrine of laches does not provide an alternate basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216(b), and where the case management devices of CPLR 3404 and 22 NYCRR 202.27 are inapplicable.

Student note:  Marking a case off a motion or conference calendar does not dispose of it.

Case:  Arroyo v. Board of Educ. of City of New York, NY Slip Op 05507 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Post-deposition errata sheets.

Searching the record on a summary judgment motion.

Practice point:  A court deciding a motion for summary judgment is empowered to search the record and may, even in the absence of a cross motion, grant summary judgment to a nonmoving party. Such power, however, is not boundless, and the court's search of the record is limited to those causes of action or issues that are the subject of the motion.

Student note:  Moreover, discovery in this matter was not complete at the time the court searched the record. Thus, it was premature for the court to grant summary judgment.

Case:  New Hampshire Ins. Co. v. MF Global, Inc., NY Slip Op 05291 (1st Dept. 2013).

Here is the decision.

Monday's issue: Laches and dismissal.

Aiding and abetting a breach of fiduciary duty, and appeals from denial of a dismissal motion.

Practice point:  Liability for aiding and abetting a breach of fiduciary duty requires establishing the following elements: (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; and (3) the defendant must knowingly and substantially assist the principal violation.

Student note:  While an appeal taken from a denial of a dismissal motion may be moot when that complaint has been superseded by an amended complaint, that is not the case where the new pleading does not substantively alter the existing causes of action.

Case:  Aetna Life Ins. Co. v. Appalachian Asset Mgt. Corp., NY Slip Op 05506 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Searching the record on a summary judgment motion.

Disorderly conduct as between spouses.

Practice point:  The criminal and family courts have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, as defined by the Penal Law, when committed between spouses, pursuant to Family Ct. Act § 812; CPL 100.07, 530.11[1]. In a family offense proceeding, the petitioner has the burden of establishing, by a fair preponderance of the evidence, that the charged conduct was committed as alleged in the petition, pursuant to Family Ct. Act § 832.

Student note:  The petitioner is required to prove that the spouse's conduct was committed with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm.

Case: Matter of Cassie v. Cassie, NY Slip Op 05446 (2d Dept. 2013)

Here is the decision.

Tomorrow's issue: Aiding and abetting a breach of fiduciary duty, and appeals from denial of a dismissal motion.

Restitution of funds.

Practice point:  A party may seek restitution of funds paid pursuant to an order set aside on appeal. The determination whether to award restitution is within the discretion of the trial court.

Student note: CPLR 5015(d) empowers a court that has set aside a judgment or order to restore the parties to the position they were in prior to its rendition, consistent with the court's general equitable powers.

Case: Gaisi v. Gaisi, NY Slip Op 05438 (2d Dept. 2013).
  
Here is the decision.

Tomorrow's issue: Disorderly conduct as between spouses.

Denying a trustee's commission.

Practice point:  Courts have the discretion to take into consideration all of a trustee's misconduct in determining the grant of annual commission, even conduct that occurred after the period applicable to the commission. The Surrogate has broad discretion to deny commission to a trustee if the trustee has engaged in misconduct. In determining if a commission should be denied, misconduct that is not directly related to the commission being sought may be taken into consideration,

Student note:  Trustees can be denied commission where their acts involve bad faith, a complete indifference to their fiduciary obligations, or some other act that constitutes malfeasance or significant misfeasance. The denial of a commission, however, should not be in the nature of an additional penalty. Rather, it should be based on the trustee's failure to properly serve the trust.

Case:  Matter of Gregory Stewart Trust, NY Slip Op 05290 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Restitution of funds.

Notices to admit.

Practice point:  The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. Here, the plaintiff's notice to admit improperly sought the defendant's admission concerning a matter that went to the heart of the controversy.

Student note:  Moreover, the purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial.

Case:  Ramcharran v. New York Airport Servs., LLC, NY Slip Op 05195 (2d Dept. 2013).

Here is the decision.

Monday's issue: Denying a trustee's commission.

Judicial review of administrative determinations.

Practice point:  Judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the determination is supported by substantial evidence. Substantial evidence means more than a mere scintilla of evidence, and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides.

Student note: When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the administrative agency. The courts may not weigh the evidence or reject the choice made by the agency where the evidence is conflicting and there is room for choice.

Case:  Matter of Solano v. City of Mount Vernon, NY Slip Op 05322 (2d Dept. 2013).

Tomorrow's issue: Notices to admit.

Coops, the business judgment rule, and recovering attorneys' fees.

Practice point:  In the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board's determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith. The business judgment rule does not apply when a cooperative board acts outside the scope of its authority or violates its own governing documents.

Student note:   Property Law § 234 provides for the reciprocal right of a lessee to recover an attorney's fee when the same benefit is bestowed upon the lessor in the parties' lease.

Case:  Cohan v. Board of Directors of 700 Shore Rd. Waters Edge, Inc., NY Slip Op 05447 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Judicial review of administrative determinations.

Default for missing a compliance conference.

Good luck to those sitting for the New York practice day of the bar exam.

Practice point:  The Supreme Court, sua sponte, dismissed this action pursuant to 22 NYCRR § 202.27(b) on the ground that the plaintiff failed to appear for a count-ordered compliance conference. However, the plaintiff demonstrated that he did not receive notice of the date of that compliance conference. As the plaintiff did not have notice of the compliance conference, the plaintiff's default was a nullity.

Student note:  Consequently, vacatur of the default was required as a matter of law and due process, and no showing of a potentially meritorious cause of action was required.

Case:  Rosas v. Stieg, NY Slip Op 05441 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Coops, the business judgment rule, and recovering attorneys' fees.

Stipulations of settlement.

Practice point:  To be enforceable, stipulations of settlement must conform to the criteria set forth in CPLR 2104.  Where a settlement is not made in open court, CPLR 2104 provides, in pertinent part, as follows: "An agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney." The plain language of the statute directs that the agreement itself must be in writing, signed by the party or the party's attorney to be bound.  In addition, since settlement agreements are subject to the principles of contract law, for an enforceable agreement to exist, all material terms must be set forth and there must be a manifestation of mutual assent.

Student note:  Stipulations of settlement are judicially favored and will not lightly be set aside. They will be enforced with rigor and without a searching examination into their substance as long as they are clear, final and the product of mutual accord.

Case:  Forcelli v. Gelco Corp., NY Slip Op 05437 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Default for missing a compliance conference.