Class certification.

Practice point:  As a prerequisite to class certification, the class representative must demonstrate that he or she will fairly and adequately protect the class' nterests, pursuant to CPLR 901[4]. The class representative acts as principal to the other class members, and owes them a fiduciary duty to vigorously protect their interests. That responsibility includes the duty to secure the class members' rights, as well as to oppose the adverse interests asserted by others. The three factors in determining adequacy of representation are potential conflicts of interest between the representative and the class members; personal characteristics of the proposed class representative, such as familiarity with the lawsuit and individual financial resources; and the quality of the class counsel.

Student note:  Pursuant to CPLR 902, A class action may be maintained in New York only after the five prerequisites of CPLR 901(a) have been satisfied. The actual certification is discretionary with the trial court.

Case:  Cooper v. Sleepy's, LLC, NY Slip Op 05942 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Residence and domicile, as they relate to venue.

The plainitff's identifying the cause of the fall.

Practice point:  Here, the defendants failed to establish, prima facie, that the plaintiff could not identify the cause of her fall. In support of the motion and cross motion, the defendants relied on the transcript of the plaintiff's testimony at the General Municipal Law § 50-h hearing.  However, the transcript failed to eliminate triable issues of fact as to plaintiff's establishing the cause, as she testified that there was ice at the place where she fell.

Student note: 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. If a plaintiff is unable to identify the cause of a fall, any finding of negligence would be based on impermissible speculation. That does not mean that a plaintiff must have personal knowledge of the cause of the fall, but only that a plaintiff's inability to establish the cause -- by some admissible proof -- is fatal to a cause of action based on negligence.

Case:  Cipriano v. City of New York, NY Slip Op 05940 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Class certification.

Whistleblower suits and notices of claim.

Practice point:  A party bringing a whistleblower claim, and seeking both legal and equitable remedies, must file a notice of claim pursuant to General Municipal Law §§ 50-e, 50-i, even though the Whistleblower Statute is not a tort statute and technically does not fall within the categories described in General Municipal Law § 50-i.  However, a plaintiff whose claim falls under the jurisdiction of General Municipal Law § 50-e, or other narrow statutory notice requirements, may pursue an equitable claim, including one for reinstatement, absent the notice of claim.

Student note: The Whistleblower Law forbids retaliatory personnel action by public employers against their employees who disclose to a governmental body information regarding violations of regulations that would present a specific danger to public health or safety, or about what the employee believes to be an improper governmental action, pursuant to Civil Service Law § 75-b[1][d]; [2][a]. A whistleblower claim may seek both monetary damages and equitable relief, including an injunction to restrain continued violation of the law; reinstatement to the same or equivalent position as before, with full fringe benefits and seniority rights; compensation for lost wages, benefits and other remuneration; and reasonable costs, disbursements and attorney's fees, pursuant to Civil Service Law § 75-b[3][c], referencing Labor Law § 740[5].

Case:  Rose v New York City Health & Hosps. Corp., NY Slip Op 06013 (1st Dept. 2014)

Here is the decision.

Monday's issue: The plaintiff's identifying the cause of the fall.

Attorney-defendants' alleged participation in a fraudulent corporate scheme.

Practice point:  Plaintiffs allege that the attorney-defendants, who were retained as the attorneys for the allegedly fraudulent corporation, were complicit in the fraudulent scheme by drafting documents and a shareholder agreement designed to give plaintiffs the impression that the corporation was legitimate, and by dealing directly with plaintiffs in reviewing the documents and giving them "accompanying legal advice and counsel."

The Appellate Division determined that, as against the attorney-defendants, the causes of action sounding in constructive fraud and negligent misrepresentation causes of action were deficient, as they failed to to allege the requisite fiduciary or special relationship between plaintiffs and defendants. The Appellate Division noted that the attorneys for a corporation represent the corporate entity, not the shareholders, and here the parties did not expressly agree otherwise. Plaintiffs' subjective belief did not create an attorney-client relationship or a close relationship approaching privity that imposed on defendants a duty to impart correct information.

Student note:  To the extent that the causes of action, as pleaded, could be fairly interpreted as including liability for aiding and abetting fraud, they are still deficient because they fail to allege that the attorney-defendants had actual knowledge of the fraud and provided substantial assistance in its commission. The allegation that the attorneys "knew or should have known" of the fraud is conclusory, and alleges mere constructive knowledge. The allegations that the attorneys prepared merger documents and a shareholder agreement are allegations of ordinary professional activity, not substantial assistance.

Case: Gregor v. Rossi, NY Slip Op 06012 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Whistleblower suits and notices of claim.

Emails, affidavits, and documentary evidence.

Practice point::  A cause of action may be dismissed pursuant to CPLR 3211(a)(1) only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law, and definitely disposing of the plaintiff's claim.

Student note:  In a proper case, email correspondence can suffice as documentary evidence for purposes of CPLR 3211(a)(1).  However, factual affidavits are not documentary evidence within the meaning of the statute.

Case:  Art & Fashion Group Corp. v. Cyclops Prod., Inc., NY Slip Op 06008 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Attorney-defendants' alleged participation in a fraudulent corporate scheme.

Moving for a change of venue.

Practice point:  To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff's choice of venue is improper and that defendant's choice of venue is proper. To succeed on his motion here, the defendant was obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in the county that the plaintiff designated. Only if the defendant made such a showing was the plaintiff required to establish, in opposition, via documentary evidence, that the venue he had selected was proper.

The only evidence that the defendant submitted with respect to the issue of the plaintiff's residence was the police accident report on the accident. This evidence merely showed that, at the time the accident occurred, the plaintiff had a residence in Texas. This evidence did not demonstrate that the plaintiff did not maintain a residence in Kings County when the action was commenced, two months after the accident. Therefore, the defendant failed to meet his initial burden.

Student note:   A plaintiff may choose venue based solely on a defendant's address, as set forth in a police accident report.  However, that report, standing alone, is not enough to demonstrate that, on the date that an action is commenced, a plaintiff does not reside in the county where he or she elects to place venue.

Case:  Chehab v. Roitman, NY Slip Op 05939 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Emails, affidavits, and documentary evidence.

Court holiday.

Triangle Shirtwaist Factory

The courts are closed to mark Labor Day.

Tomorrow's issue:  Moving for a change of venue.








                                                                                                                         

Commencing a tort action against a municipality.

Practice point:  In order to commence a tort action against a municipality, General Municipal Law § 50-e(1)(a) requires a claimant to serve a notice of claim upon that municipality within 90 days after the date that the claim arose. General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time to serve a notice of claim. Whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is seen as a factor which should be accorded great weight in determining whether or not to grant leave to serve a late notice of claim.  In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves.

Student note:  Other factors a court must consider in determining whether to grant leave to serve a late notice of claim are: (1) whether the claimant was an infant or mentally or physically incapacitated; (2) whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim; and (3) whether the delay would substantially prejudice the public corporation in maintaining its defense (see General Municipal Law § 50-e[5].

Case:  Kellman v. Hauppauge Union Free School Dist., NY Slip Op 05844 (2d Dept. 2014)

Here is the decision..

Tuesday's issue: Moving for a change of venue.

Standing in a mortgage foreclosure action.

Practice point:  In a mortgage foreclosure action, a plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation.

Student note:  Where, as here, standing is put into issue by a defendant, the plaintiff must prove its standing in order to be entitled to relief.

Case:  Federal Natl. Mtge. Assn. v. Cappelli, NY Slip Op 05836 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Commencing a tort action against a municipality.

Dismissal pursuant to CPLR 3216.

Practice point:  CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as a basis for a motion to dismiss the action.

Student note  As CPLR 3216 is a legislative creation and not part of a court's inherent power, a court may not dismiss an action for want of prosecution where the plaintiff was not served with the requisite 90-day demand pursuant to CPLR 3216(b).

Case:  Diemer v. Eben Ezer Med. Assoc., NY Slip Op 058323 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Standing in a mortgage foreclosure action.

The service requirements of a foreclosure action.

Practice point:. RPAPL 1304[1] requires that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type."  The statute sets forth the requirements for the content of the notice, and further provides that the notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower, pursuant to RPAPL 1304[2].

Student note:  Proper service of the RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action.

Case:  Deutsche Bank Natl. Trust Co. v. Quinn, NY Slip Op 05829 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal pursuant to CPLR 3216.