A divorce action, and a referre's overstepping his bounds.

Practice point:  Plaintiff commenced this divorce action on the ground of constructive abandonment, and, at a preliminary conference, the parties, each represented by counsel, stipulated that defendant would assert a counterclaim for divorce on the ground of constructive abandonment, and plaintiff withdrew her claim. The outstanding financial matters were referred to a special referee to hear and determine. The parties then stipulated that the referee would also hear and determine the issue of grounds, pursuant to their preliminary conference stipulation. However, at the hearing, defendant made an application to withdraw his counterclaim, and, over plaintiff's objection, the referee granted the application, leaving plaintiff without a cause of action for divorce. The referee then granted plaintiff's application to reinstate her claim for divorce. Although the referee stated that he was permitting plaintiff to proceed by inquest, instead he conducted a full trial on grounds, at which defendant was permitted to interpose opposition. The referee denied the divorce.

The Appellate Division determined that the referee exceeded his authority when he permitted defendant to withdraw his counterclaim for constructive abandonment, and conducted a fully contested trial on plaintiff's previously-withdrawn claim. The referral by the court, as thereafter expanded by the parties' stipulation, did not give the referee authority to set aside any part of the parties' stipulation, pursuant to CPLR 4311; By clear and unambiguous terms, defendant had waived his right to withdraw his counterclaim.

Student note: Even if the Referee had the authority to set aside the stipulation, there was no legal basis whatsoever was set forth justifying setting it aside.

Case:  Karpov v. Shiryaev, NY Slip Op 02848 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A cause of action for civil conspiracy.

An attorney sues for fees, claiming breach of contract and unjust enrichment.

Practice point:  A claim for unjust enrichment does not lie where it duplicates or replaces a conventional contract claim.  So, the attorney cannot seek damages for unjust enrichment where, as here, the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties. However, where there is a bona fide dispute as to the existence of a contract or the application of a contract in a dispute, a plaintiff may proceed on the theories of both quasi contract and breach of contract.

Student note:  There can be no quasi-contract claim against a third-party non-signatory to a contract that covers the subject matter of the claim.

Case:  Scarola Ellis LLP v. Padeh, NY Slip Op 02847 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A divorce action, and a referee's overstepping his bounds.

A motion to dismiss for failure to state a cause of action.

Practice point:  The motion was denied because, among other things, the complaint's allegations which assert a claim for damages as a result of the defendants' alleged breach of an agreement to pay an earned commission clearly fit within a cognizable legal theory. In addition, the question of whether the plaintiff will ultimately establish its entitlement to an earned commission is not a proper consideration in determining the motion.

Student note:  On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Case:  Atlantic Capital Realty v. Cayuga Capital Mgt., LLC, NY 02733 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An attorney sues for fees, claiming breach of contract and unjust enrichment.

Statute of limitations in a toxic exposure action.

Practice point:  The statute of limitations began to run when plaintiff discovered the primary condition on which his claim is based, and not when he discovered the causation connection to the toxic substance.

Student note: Plaintiff's uncertified medical records may be considered since plaintiff does not dispute their accuracy or veracity, pursuant to CPLR 4518[c]. He only disputes the inferences to be drawn from the records as to the date on which his condition was sufficiently apparent to start the running of the limitations period.

Case:  Ward v. Lincoln Elec. Co., NY Slip Op 02668 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A motion to dismiss for failure to state a cause of action.

Hit while crossing within the crosswalk.

Practice point:  Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability by submitting an affidavit stating that defendants' yellow cab struck him as he was crossing within a crosswalk, with the pedestrian light in his favor, and after he had looked for oncoming traffic. In opposing, defendants failed to raise a triable issue of fact. Defendant-driver himself admitted in his affidavit that both he and plaintiff spoke with the police officer, and his statement to the officer is admissible as an admission against interest.

Student note: The court determined that defendant-driver's affidavit containing a different version of the facts seems to have been submitted to avoid the consequences of his prior admission to the police officer, and so it iis insufficient to defeat plaintiff's motion.

Case: Garzon-Victoria v. Okolo, NY Slip Op 02667 (1st Dept. 2014)

Here is the decision.

Monday's issue: Statue of limitations in a toxic exposure action.

An owner's duty and slippery floors.

Practice point:  A property owner's duty to maintain the premises so that they are reasonably safe extends to any hazardous condition about which the owner has actual or constructive notice. Except where the landowner created the defective condition, thereby affording actual notice, it is the responsibility of the injured party to establish that the condition was either known to the owner or had existed for a sufficient period of time to have allowed the owner to discover and correct it.

Student note:  Proof that a floor is inherently slippery, standing alone, is insufficient to support a cause of action for negligence.

Case: Caicedo v. Sanchez, NY Slip Op 02663 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Hit while crossing within the crosswalk.

Causes of action for quantum meruit and unjust enrichment.

Practice point:  Under the doctrine of quantum meruit, the performance and acceptance of services gives rise to the inference of an implied contract to pay for the reasonable value of such services.

 A person may be unjustly enriched not only where he or she receives money or property, but also where he or she otherwise receives a benefit. Such a benefit may be conferred where the person's debt is satisfied or where she is otherwise saved expense or loss.

Student note: To state a cause of action for quantum meruit, plaintiff must allege (l) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services. 

To state a cause of action for unjust enrichment, a plaintiff must demonstrate that (1) defendant was enriched, (2) at plaintiff's expense, and (3) that it is against equity and good conscience to permit defendant to retain that which is sought to be recovered.

Case:  Farina v. Bastianich, NY Slip Op02661 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: An owner's duty and slippery floors.

A summary judgment motion in a medical malpractice motion.

Practice point:  On the motion, the defendant-physician must make a prima facie showing that there was no departure from good and accepted medical practice, or that the plaintiff was not injured thereby.  On such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut, but only as to those elements on which the defendant met its burden..

Here, the Appellate Division found that the Supreme Court correctly concluded, the defendants had made the requisite showing, shifting the burden to the plaintiff, who relied on the affirmations of two physicians, one board-certified in internal medicine and nephrology, and the other board-certified in diagnostic, interventional, and vascular radiology. The Appellate Division  agreed with the Supreme Court's determination that these affirmations consisted of conclusory and unsupported allegations, that they failed to address the salient issues concerning the defendants' alleged departures from accepted medical practice, and that they failed to respond to relevant issues raised by the defendants' experts. While one of the plaintiff's experts concluded that certain of the decedent's symptoms were consistent with nephrotoxicity resulting from the use of intravenous contrast in the procedures, both affirmations were speculative in concluding that the decedent's condition was caused by the defendants' actions in performing the second angiogram. Moreover, the plaintiff's experts failed to differentiate between and among the acts and omissions of the various defendants. Accordingly, these affirmations were insufficient to raise a triable issue of fact.

Student note: Because the cause of action to recover damages for wrongful death and the derivative cause of action were both premised on the defendants' alleged malpractice, the same conclusion applies to these causes of action.

Case:  Ahmed v. Pannone, NY Slip Op 02552 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Causes of action for quantum meruit and unjust enrichment.

Transfer of assets and Medicaid ineligibility.

Practice point:  An individual will not be ineligible for Medicaid as a result of a transfer of assets if it is determined that the denial of eligibility will result in an undue hardship. An undue hardship occurs where the institutionalized individual is otherwise eligible for Medicaid, is unable to obtain appropriate medical care without the provision of Medicaid, and is unable to have the transferred assets returned, pursuant to18 NYCRR 360-4.4.

Student note:  In reviewing a Medicaid eligibility determination made after a fair hearing, the court must review the record, as a whole, to determine if the agency's decisions are supported by substantial evidence and are not affected by an error of law. "Substantial evidence" is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.

Case: Matter of Tarrytown Hall Care Ctr. v. McGuire, NY Slip Op 02600 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A summary judgment motion in a medical malpractice action.

Legal malpractice claims and settlements.

Practice point:  A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel.  However, a plaintiff's conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a claim.

Student note:  To recover damages in a legal malpractice action, a plaintiff must establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages.  As to causation, a plaintiff must show that, but for the attorney's negligence, he or she would have prevailed in the underlying action or would not have incurred any damages.

Case:  Benishai v. Epstein, NY Slip Op 02404 (2d Dept. 2014).

Here is the decision.

Monday's issue: Transfer of assets and Medicaid ineligibility.

A time-barred fraud claim.

Practice point:  A fraud-based action must be commenced within six years of the fraud, or within two years from the time the plaintiff discovered the fraud, or could with reasonable diligence have discovered it, whichever is later, pursuant to CPLR 213[8].

Student note:  On a motion to dismiss a complaint as time-barred, pursuant to CPLR 3211(a)(5), the defendant must establish, prima facie, that the time in which to commence the action has expired. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

Case: Belzer v. Hirsch, NY Slip Op 02403 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Legal malpractice claims and settlements.