CPLR 3408 and negotiating in good faith.

Practice point:  CPLR 3408 is a remedial statute, enacted in response to the 2008 mortgage crisis, which requires that the parties enter into and conduct negotiations in good faith. In this mortgage foreclosure action, the Appellate Division affirmed the denial of defendant's motion to dismiss  as a sanction for plaintiff's alleged failure to negotiate in good faith. The Appellate Division determined that the documentation defendant submitted in support of her motion did not establish that plaintiff failed to negotiate in good faith by refusing to accept defendant's proposal of a lump sum payment of in full satisfaction of the outstanding loan balance.

Student note:  The issue of whether a party failed to negotiate in good faith' within the meaning of CPLR 3408(f) will be determined by considering whether the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution.

Case:  Deutsche Bank Natl. Trust Co. v. Twersky, NY Slip Op 00473 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  A double-parked vehicle, negligence, and proximate cause.

Premature summary judgment motions.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion even though it was made before defendant produced a witness  for deposition.  Defendant established prima facie that plaintiff's slip and fall on ice was not due to any negligence on its part by submitting a departmental director's affidavit stating that defendant operated a bus route with a stop at the subject location but did not "own, manage, maintain, operate, or control any bus stops."  Plaintiff failed to make a showing that discovery might lead to relevant evidence supporting her claim that defendant owned or was responsible for removing snow and ice from the accident location.

Plaintiff could not argue that defendant breached a common carrier's duty to provide a safe means of ingress, because plaintiff did not plead this theory of liability in her notices of claim.

Case:  Cruz v. City of New York, NY Slip Op 00586 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  CPLR 3408 and negotiating in good faith.

Unjust enrichment claims and the statute of frauds.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss the unjust enrichment claim in this action to recover a finder's fee allegedly due plaintiff from the sale of certain assets belonging to a nonparty, and misappropriated by defendant. It is uncontested that the finder's fee was a matter of contract between plaintiff and the nonparty, and that plaintiff and defendant were not parties to a written agreement.

Plaintiff's claim is not, as defendant contends, barred by the statute of frauds, at  General Obligations Law § 5-701[a][10]. The Court of Appeals has upheld an unjust enrichment claim in the absence of a writing, and so the statute of frauds is inapplicable and irrelevant to the analysis.

Student note:  An unjust enrichment claim is founded on a quasi-contract theory of recovery and is imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned.

Case:  Winthrop v. Rosenthal & Rosenthal, Inc., NY Slip Op 00582 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Premature summary judgment motions.

Disclosure regarding an expert's anticipated testimony.

Practice point:  The Appellate Division affirmed the denial of that branch of plaintiff's motion to compel defendants to provide further disclosure regarding the anticipated testimonies of their expert witnesses.  Defendants' expert disclosure statements sufficiently disclosed in reasonable detail the subject matter and the substance of the facts and opinions on which the experts were expected to testify, and a summary of the grounds for their opinions.

Student note:  There is no requirement that the expert set forth the specific facts and opinions upon which he or she is expected to testify, but, instead, only the substance of those facts and opinions.

Case:  Conway v. Elite Towing & Flatbedding Corp., NY Slip Op 00470 (2d Dept. 2016)

Here is the decision.

Monday's issue:  Unjust enrichment claims and the statute of frauds.

Appellants who are not aggrieved by the order being appealed.

Practice point:  Where the order does not affect the rights of an appealing party, that party is not aggrieved by the order and the appeal must be dismissed.

Student note:  A party is aggrieved by an order when it directly affects that party's individual rights. A party is not aggrieved by an order which does not grant relief the party did not request.

Case:  Barrett v. Dennis Lounsbury Bldrs., Inc., NY Slip Op 00319 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Disclosure regarding an expert's anticipated testimony.

Comity, and foreign divorce decrees.

Practice point: Although not required to do so, New York courts generally will recognize the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of other States.  Comity extends to upholding the validity of a foreign divorce decree, absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York.

Student note:   New York courts will generally recognize all the provisions of the decree, including any agreement which may have been incorporated therein.

Case:  Badawi v. Alesawy, NY Slip Op 00317 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Appellants who are not aggrieved by the order being appealed.

Sanctions, and frauds on the court.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion, made only one day after the court, at oral argument, denied a motion made by plaintiff seeking nearly identical relief. The evidence does not support a finding of civil contempt against defendant, as there is no showing that defendant violated an order of the court, pursuant to Judiciary Law § 753[A].

Neither was  defendant's cross motion seeking sanctions frivolous, pursuant to 22 NYCRR 130-1.1. Although the motion court denied defendant's cross motion, it correctly admonished plaintiff for her multiple after-hours telephone calls, and for her communications threatening to report defense counsel to the disciplinary committee unless his firm withdrew as counsel.

Defendant did not commit fraud upon the court by providing it with a copy of a redacted email from plaintiff. The redactions were obvious and involved settlement negotiations.  In addition, defendant obtained an unredacted copy of the email for the court's review and read almost all of the email into the record at oral argument, except for the proffered settlement amounts.

Student note:  The Appellate Division found that discovery sanctions, such as striking defendant's answer, are unwarranted, pursuant to CPLR 3126. Although defendant failed to appear at a nonparty deposition, it contacted plaintiff in advance and advised her that the witness could not appear on the date she had selected.

Case:  Pezhman v. Chanel, Inc., NY Slip Op 00427 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Comity, and foreign divorce decrees.

The measure of damages in a fraud claim.

Practice point:  When a claim sounds in fraud, the measure of damages is governed by the "out-of-pocket" rule, which states that the measure of damages is indemnity for the actual pecuniary loss sustained as the direct result of the wrong.  In other words, damages are calculated to compensate plaintiffs for what they lost because of the fraud, not for what they might have gained in the absence of fraud.

Student note:  A claim of actual injury or damage is an essential element in any claim of fraud.

Case:  Connaughton v. Chipotle Mexican Grill, Inc., NY Slip Op 00273 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Sanctions, and frauds on the court.

"Employee," within the meaning of the Labor Law.

Practice point:  The Labor Law defines "employee" as "a mechanic, workingman or laborer working for another for hire," § 2[5], and "employed" as "permitted or suffered to work," § 2[7].  To come within the ambit of § 240, imposing absolute liability on contractors, owners, and their agents to furnish safe equipment for employees, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by an owner, contractor or their agent.

The Appellate Division determined that plaintiff, as movant for summary judgment, met his prima facie burden of showing that he was an employee for hire, "permitted or suffered" to work at the site on the day of his accident, and defendants violated the requirements § 240, which was a proximate cause of the accident.  However, in opposition, defendants raised a triable issue of fact as to whether plaintiff had permission to perform work at the site on the day of the accident.

Student note:  Labor Law § 240(1) imposes "upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" for failure to provide proper protection from elevation-related hazards. 

Case:  Aslam v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., NY Slip Op 00316 (2d Dept. 2016)

Here is the decision.

Monday's issue:  The measure of damages in a fraud claim.

Bus stops.

Practice point:  The Appellate Division affirmed dismissal of the complaint based on the deposition testimony of plaintiff and her daughter, a fellow passenger, which demonstrated that the bus did not stop in a way that was unusual, violent, or of a different class from the jerks and jolts typically experienced in city bus travel.

Student note:  To establish a prima facie case of negligence against a common carrier for injuries sustained when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was unusual and violent. Proof that the stop was unusual or violent must consist of more than a mere characterization of the stop in those terms by the plaintiff.  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 defendant's negligence.

Case: Andreca v. Cash World Tours, Inc., NY Slip Op 00138 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue: "Employee," within the meaning of the Labor Law.

A defendant's prima facie burden on causation.

Practice point:  Defendant failed to make a prima facie showing that plaintiff's injuries were not caused or exacerbated by the alleged breach of defendants duty of care, and, thus, the burden never shifted to plaintiff on this issue.

On the motion, defendant improperly attempted to shift the initial burden to plaintiff, by challenging the existence of evidence as to causation, rather than affirmatively establishing a lack of causation, such as via an expert affidavit. Defendant argued that "[p]laintiff has failed to produce any evidence . . . suggesting that [defendant's] conduct caused her injury to worsen," and proceeded to try to poke holes in plaintiff's theory of causation.  While plaintiff's ability to establish a causal connection may be difficult, that does not establish the absence of a causal connection.

Student note:  A defendant cannot meet its burden merely by pointing out gaps in plaintiff's case.

Case:  Katz v. United Synagogue of Conservative Judaism, NY Slip Op 00094 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Bus stops.