In a trip-and-fall action, a trivial defect.

Practice point:  In moving to dismiss on this basis, a defendant must make a prima facie showing that the defect is physically insignificant, and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses.

Student note:  On a sufficient showing, the burden shifts to the plaintiff to establish an issue of fact.

Case:  Chojnacki v. Old Westbury Gardens, Inc., NY Slip Op 05706 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  A religious corporation's sale of real property.

Dismissal of a legal malpractice claim.

Practice point: To recover damages for legal malpractice, 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 breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.

Student note:  Establishing causation requires a showing that, but for the lawyer's negligence, the plaintiff would have prevailed in the underlying action, or would not have incurred any damages.

Case:  Burbige v. Siben & Ferber, NY Slip Op 05704 (2d Dep't July 19, 2017)

Tomorrow's issue:  In a trip-and-fall action, a trivial defect.

An age and disability discrimination claim.

Plaintiff commenced this action to recover damages for employment discrimination on the basis of disability and age in violation of the New York State Human Rights Law, at Executive Law § 296 (NYSHRL) and the New York City Human Rights Law, at Administrative Code of City of NY § 8-107 (NYCHRL). Plaintiff alleges that defendant terminated her employment because she was physically restricted from performing a certain filing task, as she had recently undergone surgery and was still recovering.  Plaintiff also alleges that, after the termination, her employer misrepresented the facts of her discharge to the New York State Department of Labor in order to prevent her from claiming unemployment benefits.

The Appellate Division reversed the motion court's denial of summary judgment for defendant, and dismissed the complaint. 

Practice points:  As to the alleged violations of the NYSHRL, defendant submitted plaintiff's medical documentation indicating that she was cleared to return to work "without restrictions." This evidence establishes, prima facie, that plaintiff did not suffer a disability requiring any accommodation.  Defendant met its burden of offering a legitimate, nondiscriminatory reason for terminating plaintiff's employment and demonstrated that there were no material issues of fact as to whether those explanations were pretextual.

As to the alleged violations of the NYCHRL, defendant made a prima facie showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in its challenged actions.

Student note:  The testimony of defendant's employees before the New York State Department of Labor was absolutely privileged.

Case:  Bull v. Metropolitan Jewish Health Systems, Inc., NY Slip Op 05703 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  Dismissal of a legal malpractice claim.

Determining the amount and duration of maintenance.

Practice point:  The court will consider factors such as the duration of the marriage; the parties' standard of living during the marriage; the parties' income and property; the distribution of marital property; the parties' health; the parties' present and future earning capacity; the ability of the party seeking maintenance to become self-supporting; and the reduced or lost lifetime earning capacity of the party seeking maintenance.

Student note:  The determination is committed to the sound discretion of the trial court, and it will be made on the unique facts before the court. 

Case:  Brinkmann v. Brinkmann, NY Slip Op 05702 (2d Dep't July 19, 2017)

Here is the decision.

Monday's issue:  An age and disability discrimination claim.

Vacating an arbitration award for partiality.

Practice point:  To vacate the award because of evident partiality under the Federal Arbitration Act (9 U.S.C. § 10[a][2], the movant must show that, given the totality of the circumstances, a reasonable person would have to conclude that an arbitrator was partial to one party.  While this showing requires something more than the mere appearance of bias, proof of actual bias is not required. Instead, a finding of partiality can be inferred from objective facts inconsistent with impartiality. While actual knowledge of a conflict can be dispositive of the evident partiality test, the absence of actual knowledge is not.

Student note:  The court will consider factors such as (1) the extent and character of the personal interest, pecuniary or otherwise, of the arbitrator; (2) the directness of the relationship between the arbitrator and the party he is alleged to favor; (3) the connection of that relationship to the arbitrator; and (4) the proximity in time between the relationship and the arbitration proceeding.

Case:  Matter of TCR Sports Broadcasting Holding, LLP v. WN Partner, LLC, NY Slip Op 05689 (1st Dep't July 13, 2017)

Here is the decision. 

Tomorrow's issue:  Determining the amount and duration of maintenance.

An unenforceable arbitration provision.

Practice point:  An arbitration provision which prohibits class, collective, or representative claims violate the National Labor Relations Act and is unenforceable.

Case:  Gold v. New York Life Ins. Co., NY Slip Op 05695 (1st Dep't July 18, 2017)

Here is the decision.

Tomorrow's issue: Vacating an arbitration award for partiality.

A claim for injuries caused by a domestic animal.

Practice point:  New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal.  The settled law in New York is that a domestic animal's owner who either knows or should have known of the animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities.

Student note:  Once this knowledge is established, the owner faces strict liability.

Case:  Abrahams v. City of Mount Vernon, NY Slip Op 05699 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  An unenforceable arbitration provision.

A hearing on an application for the award of attorney's fees.

Practice point:  The plaintiff waived his right to a hearing on the defendant's application by agreeing that, although "each party retains the right to appeal any order of this court with respect to counsel fees," the parties' respective applications for an award of an attorney's fee would be "done simultaneously without a right to oppose or reply."

Case:  Fishman v. Solomon, NY Slip Op 05581 (2d Dep't July 12, 2017)

Here is the decision.

Tomorrow's issue:  A claim for injuries caused by a domestic animal.

A breach of contract claim.

The law office-defendant, an LLC, opened an IOLA account with the bank-plaintiff and deposited a purported client's cashier's check into the account. Shortly thereafter, the client, through the law office, directed that the majority of the funds be wired to two international parties. Although the bank's business deposit accounts brochure says that a transfer of more than $5,000 out of a new account will be made only after nine business days, the money was wired out of the account before the ninth business day, after the bank's employees had verified by telephone with the clearinghouse bank that the check had cleared. A few days later, it was discovered that the check was fraudulent.

Practice point:  The breach of contract claim was dismissed as against the lawyer because he is not the named customer on the bank account, and there is no basis for holding him liable in the documents that comprise the application to open the account. The negligence cause of action also was dismissed as against him. Limited Liability Company Law § 1205(a) makes an LLC's member liable for negligence in the furnishing of services, that is, malpractice. Here, however, neither the lawyer nor the LLC were providing personal services to the bank; they were acting as its customer. Additionally, there are no allegations otherwise supporting a personal claim against the lawyer based on piercing the corporate veil.

Case:  Metropolitan Commercial Bank v. Levy, NY Slip Op 05505 (1st Dep't July 6, 2017)

Here is the decision. 

Tomorrow's issue:  A hearing on an application for the award of attorney's fees.

Forum selection clauses.

Practice point:  Where a contracting party has agreed to submit to the jurisdiction of a court, that party is precluded from disputing the court's jurisdiction on the grounds of forum non conveniens.

Case:  Honeywell Intl. Inc. v. ARC Energy Servs., Inc. NY Slip Op 05686 (1st Dep't July 13, 2017)

Here is the decision. 

Tomorrow's issue:  A breach of contract claim.

An alleged breach of the employer's fiduciary duty.

Practice point:  An employer-employee relationship, without more, does not give rise to a fiduciary duty.

Case:  Brook v. Peconic Bay Med. Ctr., NY Slip Op 05681 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  Forum selection clauses.