The common interest privilege.

Practice point:  Under this doctrine, a third party may be present at the communication between an attorney and a client without destroying the privilege if the communication is for the purpose of furthering a nearly identical legal interest shared by the client and the third party.

Student note:  The common interest privilege serves as an exception to the general rule that the presence of a third party at a communication between counsel and client will waive a claim that a communication is confidential.

Case:  Levy v. Arbor Commercial Funding, LLC, NY Slip Op 03063 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A bus operator's duty of care.

Derivative suits and the futility of making a demand of the board.

Practice point:  Business Corporation Law § 626(c) provides that in a shareholders' derivative suit, "the complaint shall set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board or the reasons for not making such effort."  To overcome a motion to dismiss for failure to plead demand futility, a plaintiff must have alleged with particularity that (1) a majority of the directors are interested in the transaction, or (2) the directors failed to inform themselves to a degree reasonably necessary about the transaction, or (3) the directors failed to exercise their business judgement in approving the transaction.

Student note:  The Appellate Division did not consider plaintiff's argument because it was made for the first time on appeal, and it contradicted the allegations in his complaint.

Case:  Goldstein v. Bass, NY Slip Op 03060 (1st Dep't 2016)

Here is the deision.

Tomorrow's issue:  The common interest privilege.

An assault on Transit Authority property.

Practice point:  The Appellate Division affirmed the granting of defendant's motion for summary judgment in this action to recover damages for personal injuries. The defendant-Transit Authority demonstrated that it had no special relationship with the plaintiff, thereby establishing its prima facie entitlement to judgment as a matter of law, and, in opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's claims that a Transit employee observed another passenger injuring her on Transit property and failed to summon emergency assistance in a timely manner from a position of safety is based on speculation and conjecture, and thus, is insufficient to defeat the motion.

Student note:  Generally, the Transit Authority owes no duty to protect a person on its premises from assault by a third person, absent facts establishing a special relationship between the agency and the person assaulted. A "special relationship" requires justifiable reliance by a plaintiff upon an affirmative undertaking by the municipal defendant to act on the plaintiff's behalf.  However, a Transit employee's unreasonable failure to summon aid upon observing an injury being inflicted from a vantage point offering both safety and the means to summon help without danger may fall within the narrow range of circumstances which could be actionable.

Case:  Jacobs v. Transit Authority, NY Slip Op 02776 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Derivative suits and the futility of making a demand of the board.

The granting of attorneys' fees pursuant to Lien Law.

Practice point:  The Appellate Division found that attorneys' fees were improperly granted pursuant to Lien Law §§ 39 and 39-a, since this was not an action or proceeding to enforce the lien, and the lien had been discharged without a finding of willful exaggeration.  The Appellate Division noted that the statute is penal in nature, and must be strictly construed in favor of the person upon whom the penalty is sought to be imposed.

Student note:  Although respondents failed to raise this issue in opposition to the petition, the Appellate Division reached it because it presents a legal issue that appears on the face of the record and could not have been avoided if raised at the proper juncture.

Case:  Harrington v. Smith, NY Slip Op 02934 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  An assault on Transit Authority property.

Alleging injuries caused by the negligence of a state employee.

Practice point:  Pursuant to the Court of Claims Act § 10(3), a claim to recover damages for personal injuries caused by a state employee's negligence must be filed within 90 days after the claim accrues, unless the claimant within such time serves a written notice of intention to file a claim, in which event the claim shall be filed within two years after accrual.  The statute requires a claim to specify, among other things, the time when the claim arose and the place where it arose.  A notice of intention to file a claim must also include a statement as to when and where the claim arose.

Student note:  The statutory requirements  are set forth in sections §§ 10(3) and 11(b), and must be strictly construed. Noncompliance is a jurisdictional defect compelling dismissal.

Case:  Hargrove v. State of New York, NY Slip Op 02774 (2d Dep't 2016)

Here is the decision.

Monday's issue:  The granting of attorneys' fees pursuant to Lien Law.

A livery cab, an accident, and summary judgment.

Practice point:  The Appellate Division affirmed the denial of defendant's summary judgment motion dismissing the complaint in this action where plaintiff injured her ankle when, while riding as a passenger in the back seat of defendant's livery cab, she claims the vehicle came to an abrupt stop. At deposition, plaintiff admitted that she could not provide an account of the sequence of events culminating in the accident because she was not paying attention. Defendant moved for summary judgment, relying on the emergency doctrine, claiming that another car unexpectedly cut in front of him, which required him to immediately apply his brakes to avoid a collision. The Appellate Division agreed with the motion court that, notwithstanding defendant's present account of the accident, there are issues of fact regarding whether the stop was necessitated by an emergency that was not of defendant's own making.

Student note:  The emergency doctrine will prevent a finding of negligence against a driver confronted by a sudden and unexpected situation that leaves little time for thought, deliberation or consideration, provided that the driver's actions were reasonably prudent under emergent circumstances, and the driver did not create or contribute to the emergency. The existence of an emergency and reasonableness of a party's response to the situation ordinarily present questions of fact.

Case:  Weston v. Castro, NY Slip Op 02902 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Alleging injuries caused by the negligence of a state employee.

A motion for leave to serve an amended notice of claim.

Practice point:  The Appellate Division found that the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion for leave to serve an amended notice of claim, and reversed.  The Appellate Division found nothing in the record to suggest that the plaintiff acted in bad faith or attempted to change the location of her fall, as she gave a consistent description of the location of her fall in her notice of claim, in her testimony at the General Municipal Law § 50-h hearing held pursuant to,  and in her complaint. When the plaintiff served the defendant with a notice of claim, she attached a photograph of the accident-site. When she moved for leave to amend, she attached additional photographs which depicted the same intersection viewed from different angles. If there were any inconsistency between the original description of the location of the plaintiff's fall and the description provided in the amended notice of claim, it did not prejudice the defendant.

Student note:  A notice of claim must state the time when, the place where and the manner in which the claim arose.  Its purpose is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available. The statutory requirements are met when the notice describes the accident with sufficient particularity so as to enable the defendant to conduct a proper investigation thereof and to assess the claim's merits. A court may, in its discretion, allow a mistake, irregularity, or defect in the notice to be corrected as long as that mistake, irregularity, or defect was made in good faith and the public corporation was not prejudiced thereby.

Case: Avery v. New York City Tr. Auth., NY Slip Op 02770 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  A livery cab, an accident, and summary judgment.

Sanctions for destruction of evidence.

Practice point:  A party's willful and prejudicial destruction of evidence warrants the sanction of striking its pleadings.  Where a party disposes of evidence without moving for a protective order, a negative inference may be drawn that the destruction was willful. Willfulness may also be inferred from a party's repeated failure to comply with discovery directives.

Student note:  The Appellate Divison has upheld the striking of pleadings where the destruction of critical evidence occurs through ordinary negligence.

Case:  Chan v. Cheung, NY Slip Op 02731 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A motion for leave to serve an amended notice of claim.

Appliction of the relation-back doctrine.

Practice point:  There are three conditions that a plaintiff must satisfy before claims against one defendant may relate back to claims asserted against another: (1) both claims must arise out of the same conduct, transaction, or occurrence; (2) the new party must be united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new party either knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well.

Student note:  To establish the requisite unity of interest, the plaintiff had to show that their interest in the subject matter of the action is such that the defendants stand or fall together, and that a judgment against one would similarly affect the other.  If the relationship between the defendants is such that one may have a defense not available to the other, they are not united in interest. In addition, interests are united only where one defendant is vicariously liable for the acts of the other.

Case:  Berkeley v. 89th Jamaica Realty Co., L.P., NY Slip Op 02640 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Sanctions for destruction of evidence.

Application of the storm in progress rule.

Practice point:  Under the rule, a property owner is not responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence including the affidavit of a meteorologist, certified climatological data, and the affidavit of a licensed engineer. That evidence demonstrated that the roof of the shed partially collapsed due to the weight of the accumulated snow, and that it was snowing at the time of the occurrence and, therefore, that so the storm in progress rule applies. The burden then shifted to the plaintiff to raise a triable issue of fact as to whether the precipitation from the storm in progress was not the cause of the accident. The plaintiff failed to sustain this burden, and the Appellate Division affirmed the granting of the defendants' motion for summary judgment dismissing the complaint.

Student note:  A lull in the storm does not impose a duty to remove the accumulation of snow or ice before the storm ceases in its entirety.

Case:  Baker v. St. Christopher's Inn, Inc., NY Slip Op 02600 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Application of the relation-back doctrine.

Leave to amend denied.

Practice point:  The Appellate Division affirmed, finding that the IAS court did not abuse its discretion in denying plaintiff leave to amend to add claims of injuries to her left foot. While plaintiff was aware of the injury to her left foot for more than three years, she inexplicably delayed in seeking her expert's opinion on the issue of causation, and then further delayed in filing the instant motion. As the evidence ultimately relied upon by plaintiff's expert was developed in 2009 and 2011, well before plaintiff filed her note of issue in 2012, the motion was untimely.

Student note:  The decision to permit an amendment to a pleading or bill of particulars, especially on the eve of trial, is committed to the sound discretion of the IAS court.

Case:  Reuling v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 02707 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Application of the storm in progress rule.