A duplicative claim of a breach of fiduciary duty.

Practice point:  Under New York law, conduct amounting to breach of a contractual obligation may also constitute the breach of a fiduciary duty which is independent of the contract.  Professionals, such as investment advisors, owe fiduciary duties to their clients, and may be subject to tort liability, as it is policy, not the parties' contract, that gives rise to the duty. Here, the breach of fiduciary duty claim is duplicative of the breach of contract claim, since the plaintiff is suing the defendant not as a professional advisor, but as a managing member of the investment firm, a relationship that is controlled by the firm's operating agreement.

Case:  Panattoni Dev. Co., Inc. v. Scout Fund 1-A, LP, NY Slip Op 07334 (1st Dep't October 19, 2017)

Here is the decision.

Default judgments in matrimonial actions.

Practice point:  While there is a liberal policy with respect to vacating defaults in matrimonial actions, the defendant still must demonstrate a reasonable excuse for the default and the existence of a potentially meritorious defense, pursuant to CPLR 5015(a)(1).  The motion must be made within one year after service of a copy of the judgment or order with written notice of its entry.

Case:  Dankenbrink v. Dankenbrink, NY Slip Op 07237 (2d Dep't October 18, 2017)

Here is the decision.

An insufficient § 1983 claim.

Practice point:   Neither the state nor its officials, acting in their official capacities, are "persons" within the meaning of the statute.

Case:  Stoner v. Atlantic Realty Apts., LLC, NY Slip Op 07329 (1st Dep't October 19, 2017)

Here is the decision. 

An enforceable personal guaranty.

Practice point:  While a personal guaranty must be in writing, it does not have to be notarized to make it legally binding on the parties.  Typographical errors do not render the guaranty unenforceable.  Where the only alleged mistake is in the reduction of the agreement to a writing, it is a scrivener's error, and, no matter how the error occurred, it may be corrected without reformation of the agreement.

Student note:  In the absence of a claim for reformation, the court may, as a matter of interpretation, carry out the parties' intentions by transposing, rejecting, or supplying words to make the meaning of the contract more clear.

Case:  82-90 Broadway Realty Corp. v. New York Supermarket, Inc., NY Slip Op 07233 (2d Dep't October 18, 2017)

Here is the decision.

A residential owner's liability for a sidewalk fall.

Practice point:  There is an exemption from personal iability for failure to maintain the sidewalk if the  property is a "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes," pursuant to Administrative Code of the City of New York § 7-210[b].

While the statute does not expressly contain a primary residence requirement,  the term "owner occupied" generally is used to mean that the owner regularly occupies the property as a residence.  The legislative history shows that the exemption recognizes the inappropriateness of exposing small-property owners in residence, with limited resources, to exclusive liability regarding sidewalk maintenance and repair.

Student note:  The statute is to be strictly construed as creating liability in derogation of the common law.

Case:  Kalajian v. 320 E. 50th St. Realty Co., NY Slip Op 07225 (1st Dep't October 17, 2017)

Here is the decision.

CPLR 3126 and precluding evidence.

Practice point:  Before a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the party's failure to comply with discovery demands or court-ordered discovery was willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time.

Student note:  The nature and degree of a penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court.

Case:  Candela v. Kantor, NY Slip Op 07106 (2d Dep't October 11, 2017)

Here is the decision.

A motion for leave to renew.

Practice point:  The motion must be bsed on facts that were not offered on the prior motion and that would change the prior determination, pursuant to CPLR 2221[e][2].  Pursuant to [e][3], the movant movant must demonstrte a reasonable justification for not having presented these facts on the prior motion.

Student note:  While it may be within the court's discretion to grant leave to renew based on facts known to the moving party at the time of the prior motion, the motion is not a second chance given to parties who have not exercised due diligence in making their first factual presentation.

Case:  Byun Sik Chu v. Kerrigan, NY Slip Op 07105 (2d Dep't October 11, 2017)

Here is the decision.

A sufficiently pled gender discrimination claim.

Practice point:  The plaintiff sufficiently pled the necessary elements of the claim by alleging that another employee said that she was "inadequate" before he had ever observed her work and when all he knew about her was that she was a woman, and that, thereafter, he continually harassed and insulted her. The inference of gender-based discrimination is supported by the allegation that the plaintiff, after her termination, was almost immediately replaced by a male, as well as by the allegation that she was told that her crane was being taken out of operation, when the crane continued to be used, but with a male operator.

Case:  Schindler v. Plaza Constr., LLC, NY Slip Op 07182 (1st Dep't October 12, 2017)

Here is the decision. 

Leave to amend a pleading.

Practice point:  Pursuant to CPLR 3025(b), leave to amend a pleading will be granted when there is no significant prejudice or surprise to the opposing party, and where the evidence submitted in support of the motion for leave demonstrates that the proposed amendment may have merit.

Student note:  The movant must submit the proposed amendment, and, in order to deny the motion, the amendment's insufficiency must be clear and free from doubt.

Case:  Assevero v. Hamilton & Church Props., LLC, NY Slip Op 07103 (2d Dep't October 11, 2017)

Here is the decision.

General jurisdiction.

Practice point:  New York courts may not exercise general jurisdiction against a defendant, either under the United States Constitution or CPLR 301, unless the defendant is domiciled in New York, or in the exceptional case where the individual's New York contacts  are so extensive as to support general jurisdiction, notwithstanding domicile elsewhere.  The purchase of an apartment in New York does not establish that the individual is domiciled in New York.  New York business activities undertaken on behalf of a corporate entity are not a basis for general jurisdiction.

Case:  IMAX Corp. v. Essel Group, NY Slip Op 07091 (1st Dep't October 10, 2017)

Here is the decision.

A motion to dismiss the complaint as time-barred.

Practice point:  On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5), on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute was tolled or otherwise inapplicable, or whether the action was commenced within the limitations period.

Student note:  In considering the motion, the court must take the allegations in the complaint as true, and resolve any inferences in favor of the plaintiff.

Case:  Cataldo v. Herrmann, NY Slip Op 06920 (2d Dep't October 4, 2017)

Here is the decision.