Post-termination commissions.

Practice point:  The Appellate Division determined that, over the seven-year course of dealing between the parties, plaintiff earned commissions only if and when customers paid on the contracts plaintiff procured. Absent an agreement expressly providing for post-termination commissions, plaintiff, as an at-will commissions salesman, was not entitled to commissions for payments made by customers after his termination.

Student note:  As plaintiff was fully compensated under his agreement, he has no claim for a violation of the Labor Law. Neither does he have an unjust enrichment claim, where defendants merely retained the amounts that they were not obligated to pay for post-termination commissions.

Case:  Linder v. Innovative Commercial Sys. LLC, NY Slip Op 03617 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in a legal malpractice action.

Probative evidence in a slip and fall action.

Practice point:  Defendant failed to establish entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when, while descending the interior stairs of defendant's building, she slipped on a wet step and fell.  Defendant's maintenance caretaker's affidavit contradicted his deposition testimony as to whether he could recall the building in the housing complex he had been assigned to clean on the date in question, and was insufficient to establish a prima facie case for summary judgment

In any event, the Appellate Division found in the record triable issues as to whether defendant created the wet stair condition. Plaintiff testified that she observed water on the stairs, that the water had dampened her back and pants in the process of her fall and that the staircase smelled like it had recently been cleaned. In addition, the building's janitorial schedule indicated that the subject staircase was to be mopped shortly before plaintiff's fall, and the caretaker testified that he would have mopped the staircase around the time of the accident.

Student note:  Evidence of defendant's general cleaning and inspection procedures does not not constitute probative evidence of the procedures actually performed on the day of the accident.

Case:  Tucker v New York City Hous. Auth., NY Slip Op 03453 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Post-termination commissions.

Denial of a motion for leave to renew.

Practice point:  The Appellate Division affirmed the denial that branch of the plaintiff's motion which, in effect, was for leave to renew its prior motion, pursuant to RPAPL 1321, for an order of reference. The plaintiff failed to present new facts not offered on the prior motion that would change the prior determination, as required by CPLR 2221[e][2]. In addition, the plaintiff presented no reasonable justification for failing to submit the purportedly new evidence when it previously moved for the same relief, as required by CPLR 2221[e][3].

Student note: A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

Case:  Bank of N.Y. v. Waters, NY Slip Op 03310 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Probative evidence in a slip and fall action.

A missing witness charge.

Practice point:  The charge instructs the jury that it may draw an adverse inference based on a party's failure  to call a witness who normally would be expected to support that party's version of events. The preconditions for the charge, in both criminal and civil trials, are: (1) the witness's knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the control' of the party against whom the charge is sought, so that the witness would be expected to testify in that party's favor; and (4) the witness is available to that party.

Student note:  The use of the missing witness' deposition testimony does not constitute a waiver of the right to request a missing witness charge.

Case:  Alli v. Full Serv. Auto Repair, LLC, NY Slip Op 03308 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Denial of a motion for leave to renew.

Rebutting the presumption of proper service.

Practice point:  Defendant's affidavit denying receipt of process, and his averment that he was at his place of employment in New York County at the time of the alleged service, were sufficient to rebut the presumption of proper service, necessitating a hearing.

Student note:  A process server's affidavit of service establishes, prima facie, that defendant was properly served pursuant to CPLR 308(1). However, where, as here, the presumption is rebutted, a hearing is required.

Case:  American Home Mtge. Servicing, Inc. v. Gbede, NY Slip Op 03309 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: A missing witness charge.

A petition to disqualify an attorney.

Practice point:  The Appellate Division determined that the motion court properly granted the petition, as petitioner demonstrated that the attorney likely would be a witness on a significant fact-issue, within the meaning of Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]. Petitioner-estate alleges, among other things, that respondent withdrew $65,000 from an account he held jointly with the estate's decedent, after he entered into a written agreement, signed on his behalf by the attorney, pursuant to which he agreed to turn over to the estate the funds remaining in the account after he made certain agreed upon payments. Since respondent has asserted as a defense that he was unaware of that agreement, the attorney is a significant witness as to the negotiation of the agreement and whether he had actual or apparent authority to enter into the agreement on respondent's behalf.

Student note:  The Appellate Division noted that the attorney's testimony is likely to be prejudicial to respondent, unless the attorney testifies that he acted without his client's knowledge or authority in entering into the agreement, pursuant to Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[b].

Case:  Matter of Ehrlich v. Wolf, NY Slip Op 03417 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Rebutting the presumption of proper service.

A counterclaim for breach of contract resulting in lost business opportunities.

Practice point:  The Appellate Division ordered dismissal of the counterclaim alleging that plaintiff breached the parties' contract by engaging in certain misconduct at the workplace, resulting in lost business opportunities. In support of his motion, plaintiff submitted defendants' responses to requests to admit and the deposition testimony in which defendants admitted that they could not identify any prospective business that was lost due to plaintiff's misconduct. Therefore, plaintiff demonstrated, prima facie, that the corporation did not sustain damages as a result of any alleged misconduct on his part in the performance of his job.  In opposition, the defendants failed to raise a triable issue of fact with respect to the element of damages.

Student note:  To recover damages for breach of contract, a party must demonstrate, among other things, that damages resulted from the breach.

Case:  Cortes v. 3A N. Park Ave. Rest Corp., NY Slip Op 03120 (2d Dept. 2015)

Here is the decision. 

Tomorrow's issue:  A petition to disqualify an attorney.

A transfer of venue.

Practice point:  In this slip and fall action where plaintiff is a Kentucky resident, the Appellate Division determined that venue was properly transferred to Albany County. The designation of venue in New York County was proper, pursuant to CPLR 503(c), since two of the corporate defendants have their principal places of business within that county. However, the situs of plaintiff's injury provides a basis for a discretionary change of venue, pursuant to CPLR 510 [3], in that, all things being equal, a transitory action should be tried in the county where the cause of action arose.

Student note:  This rule is predicated on the notion of convenience for trial witnesses to be present at trial.

Case:  Wickman v. Pyramid Crossgates Co., NY Slip Op 03235 (1st Dept. 2015)

Here is the decision.

Monday's issue:  A counterclaim for breach of contract resulting in lost business opportunities.

Re-service while a motion to dismiss is pending.

Practice point:  The Appellate Division affirmed the denial of the motion to dismiss the complaint for lack of personal jurisdiction, as plaintiff established that it re-served the appellant during the pendency of the motion. Plaintiff's re-service of the summons and complaint during the pendency of the motion effectively obviated the jurisdictional objection.

Student note:  An affidavit of service constitutes prima facie evidence of proper service of process, pursuant to CPLR 308(2).

Case:  Bank of Am., N.A. v. Valentino, NY Slip Op 03116 (2d Dept. 2015)

Tomorrow's issue:  A transfer of venue.

A claim of a bus driver's negligence.

Practice point:  To prevail on a cause of action alleging that a common carrier's driver was negligent in stopping a bus, a plaintiff must prove that the stop was unusual and violent, rather than merely one of the sort of jerks and jolts commonly experienced in city bus travel. A plaintiff may not satisfy the burden of proof merely by characterizing the stop as unusual and violent. Instead, there must be objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant.

Student note:  In seeking summary judgment dismissing the complaint, however, common carriers have the burden of establishing, prima facie, that the stop was not unusual and violent.

Case:  Alandette v. New York City Tr. Auth., NY Slip Op 03113 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Re-service while a motion to dismiss is pending.

Summary judgment while a stay is pending.

Practice point:  While defendant's motion for summary judgment was pending, plaintiff's counsel moved for permission to withdraw. The motion court granted counsel's application and ordered the case stayed "for 45 days from the date of service of a copy of this order." However, plaintiff was not served with the order, and defendant's motion for summary judgment was heard and granted in plaintiff's absence. The order granting the motion on default directed defendant to settle an order, which was entered.  Plaintiff's new counsel moved to vacate these two orders on the ground that the grant of summary judgment while the action was stayed was a nullity.

The Appellate Division agreed, and reversed the motion court. After his former counsel was granted leave to withdraw, the action was stayed by court order and operation of CPLR 321(c). As plaintiff was never served with the order dismissing his attorney, the 45 day stay never expired.

Student note:  Defendant cannot avoid the stay by arguing that it did not go into effect until served on plaintiff, since the failure to serve the order cannot accrue to defendant's benefit.

Case:  Matos v. City of New York, NY Slip Op 03074 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A claim of bus driver negligence.