A declaratory judgment claim involving a Delaware LLC.

Practice point:  The Appellate Division reversed the order denying defendant's motion to dismiss, or alternatively for summary judgment, as to the cause of action for a declaration that defendant is required to sell his LLC shares to plaintiffs.

The parties' rights as members of a Delaware LLC are defined by the operating agreement which does not indicate that plaintiffs could compel the sale of defendant's membership interests. Plaintiffs rely on a section of the agreement which allows them to compel the sale of the membership interest upon the termination of the employment of "an employee other than a manager." However, it is undisputed that defendant was a managerial employee at the time of his termination, and so, under the agreement's plain language, the section is inapplicable. Moreover, plaintiffs' reading would divest the phrase "other than a manager" of any effect, a result that is contrary to Delaware which favors the interpretation that gives effect to all terms of contract.

Student note:  Where, as here, the declaratory judgment claim is resolved on the merits, the proper course is to issue a declaration in defendant's favor, not a dismissal.

Case:  LCM Holdings GP, LLC v. Imbert, NY Slip Op 00595 (1st Dept. 2014).

Here is the decision. 

Tomorrow's issue: A landowner's liability.

A civilian's liability for false arrest and malicious prosecution.

Practice point:  A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution.

Student note:  In addition, where, as here, the plaintiff was indicted by the grand jury, there is a presumption of probable cause vis-a-vis the malicious prosecution cause of action.

Case: Johnson v. Follett Higher Educ. Group, Inc., NY Slip Op 00483 (2d Dept.2014).

Here is the decision.

Monday's issue: A declaratory judgment claim involving a Delaware LLC.

Deceptive business acts and practices.

Practice point:  A private action under General Business Law § 349 must be predicated on a deceptive act or practice that is consumer-oriented. Whether a representation or an omission, the test is whether the allegedly deceptive act or practice is likely to mislead a reasonable consumer acting reasonably under the circumstances.

Student note: In addition to showing that the conduct was consumer-oriented, a prima facie case requires a showing that the defendant is engaging in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof.

Case:  David v. #1 Mktg. Serv., Inc., NY Slip Op 00477 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A civilian's liability for false arrest and malicious prosecution.

A late notice of claim.

Practice point:  In affirming the denial of the petition for leave to file a late notice of claim, the Appellate Division found that petitioners failed to explain their delay in filing the notice, pursuant to General Municipal Law § 50-e[1][a]; [5]. While they claim that the injured petitioner's incapacity prevented him from obtaining counsel from the date of the incident, in June, until his surgery in September, they do not explain the two-month delay in filing the notice after they obtained counsel in October, or the delay until the next February in seeking leave to file an untimely notice.

In addition, petitioners failed to show that respondents acquired actual knowledge of the essential facts constituting their claim, pursuant to General Municipal Law § 50-e[5]. While, respondents' internal reports and records contained the exact details of the incident, there are no factual allegations in the contemporaneous written statements of the injured petitioner's coworkers or even in petitioner's own written statement that would constitute a claim of negligence on respondents' part.  So,petitioners cannot rely on  respondents records to rebut the inference of prejudice resulting from petitioners' eight-month delay in serving the notice.

Student note: The Appellate Division also found that petitioners' cause of action is without merit. They failed to allege facts that would establish that respondents had a special duty to the injured petitioner to protect him from an assault.

Case:  McGinness v. City of New York, NY Slip Op 00572 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Deceptive business acts and practices.

The statutory pleading requirement for fraud.

Practice point:  CPLR 3016(b) requires that where a cause of action is based upon misrepresentation, fraud, mistake, willful deceit, breach of trust, or undue influence, the circumstances constituting the wrong shall be stated in detail. This pleading requirement does not rise to the level of unassailable proof, and may be met when the facts are sufficient to permit a reasonable inference of the conduct alleged.

Student note: The elements of a claim sounding in fraud are a false representation of fact, made with knowledge of the falsity and in order to induce reliance, and on which there was justifiable reliance resulting in injury.

Case: Crescentini v. Slate Hill Biomass Energy, LLC, NY Slip Op 00475 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A late notice of claim.

A defendant-corporation's pro se answer.

Practice point:  The Appellate Division found that the Supreme Court erred in accepting an untimely, pro se answer from the defendant corporation, and in thereby denying that branch of the plaintiff's motion which was for leave to enter a default judgment on the complaint. The proffered answer was a nullity as a corporation must be represented by an attorney and cannot proceed pro se, pursuant to CPLR 321[a].

Student note:  The Appellate Division also found that, as the plaintiff's submissions on the motion established each of the claims prima facie, that branch of the motion which was for leave to enter a default judgment should have been granted.

Case:  Boente v. Peter C. Kurth Off. of Architecture & Planning, P.C., NY Slip Op 00473 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  The statutory pleading requirement for fraud.

A fall at the market.

Practice point: In a slip and fall action, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the fall. Here, the store-defendants failed to make the requisite showing as the plaintiff testified at deposition that she fell on "muddy" water.

In addition, the store-defendants failed to establish that they were entitled to judgment as a matter of law on the ground that they did not create or have constructive notice of any hazardous condition.  They presented no evidence to establish when the area was last cleaned or inspected prior to the plaintiff's fall.

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

Case:  Altinel v. John's Farms, NY Slip Op 00314 (2d Dept. 2014).

Here is the decision.

Monday's issue: A defendant-corporation's pro se answer.

A workplace fall on masonite.

Practice point:  The Appellate Division determined that dismissal of plaintiff's Labor Law § 241(6) claim was warranted as there was no evidence that plaintiff's accident was the result of a failure to remove or cover a foreign substance, and masonite is not a slipping hazard contemplated by 12 NYCRR 23-1.7(d). In addition, 12 NYCRR 23-1.7(e), which requires work areas to be kept free of tripping hazards, is inapplicable because plaintiff does not allege that he tripped on an accumulation of dirt or debris. Instead, he testified that he slipped on an unsecured piece of masonite, which was not a tripping hazard.

Student note:  The court declined to consider plaintiff's fact-based argument that the accident resulted from a slippery condition caused by construction dust, as this argument was raised for the first time on appeal.

Case:  Stier v. One Bryant Park LLC, NY Slip Op 00458 (1st Dept. 2014).

 Here is the decision.

Tomorrow's issue: Another fall, this time at the market.

Effect of a default judgment as to liability.

Practice point:  In this action for plaintiff's injuries allegedly sustained while he was working for third-party defendant at a restaurant located on premises owned and/or managed by defendants, the Appellate Division, on a prior appeal, had reinstated a default judgment entered against defendants. By virtue of this default, defendants are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them.  Therefore, as between plaintiff and defendants, the issue of liability has been determined as a matter of law, and defendants may not now introduce evidence tending to defeat the plaintiff's cause of action.

Student note:  The default does not preclude defendants' pursuit of claims against third-parties for the apportionment of fault.

Case:  Paez v. 1610 St. Nicholas Ave., L.P., NY Slip Op 00421 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A workplace fall on masonite.

Plaintiff's wrongdoing as it affects a legal malpractice claim.

Practice point:  The physician-plaintiff alleged that defendant-law firm failed to represent him properly in connection with investigations by Medicare and the Office of Professional Conduct into the licensure of his employee and his billing practices, and that these failures resulted in his arrest for grand larceny and insurance fraud.

In the CPLR 3211 motion to dismiss, defendants offered documentary evidence refuting plaintiff's allegations by showing that any purported negligence in connection with the administrative proceedings or any advice with respect to plaintiff's method of billing Medicare did not proximately cause plaintiff's arrest. The indictment for grand larceny charged that plaintiff billed for services that were not rendered, and the record of his criminal conviction contradicts the allegations in the complaint. As plaintiff's own actions resulted in his arrest, he failed to show that any alleged malpractice on defendants' part proximately caused his damages, namely, his arrest. This failure required dismissal of the legal malpractice action regardless of whether defendants were negligent.

Student note: In pleading his Judiciary Law § 487 claim, plaintiff failed to allege that defendants acted with intent to deceive the court or any party, or a chronic and extreme pattern of legal delinquency.

Case:   Herschman v Kern, Augustine, Conroy & Schoppman, NY Slip Op 00416 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Effect of a default judgment as to liability.

Perfecting an appeal based on an appendix.

Practice point:  Using the appendix method, the appellants sought review of an order denying their joint motion pursuant to CPLR 4404(a) to set aside a jury verdict. However, as the appendix did not include the full trial transcript, the Appellate Division could not render an informed decision on the merits and the appeal was dismissed.

Student note:  An appellant who perfects an appeal using the appendix method must file an appendix that contains all those portions of the record necessary for the court to fully consider the issues which will be raised by the appellant and the respondent, pursuant to 22 NYCRR 670.10-b[c][1] and CPLR 5528[a][5].

Case:  Aguilar-Consolo v. City of New York, NY Slip Op 00312 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Plaintiff's wrongdoing as it affects a legal malpractice claim.