An improper fee-sharing agreement.

Judiciary Law § 491[1] prohibits any person, partnership, or corporation from sharing an attorney's fee in consideration of having placed in the attorney's hands a claim or demand of any kind. Pursuant to § 491[2], a violation is punishable as a misdemeanor.  Here, under the purported fee-sharing agreement, the plaintiffs would provide the defendant attorneys with proprietary information regarding potential clients, investigate claims, interview potential plaintiffs, and otherwise assist with litigation. In exchange, the defendant attorneys would pay the plaintiffs 20% of their fee for each case. This agreement is illegal and unenforceable. The plaintiffs are not entitled to equitable relief, since the contract was criminal in nature and not merely prohibited by statute.

Ballan v Sirota, NY Slip Op 05014 (2d Dep't July 5, 2018)

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An out-of-possession landlord's liability.

Snow or ice is not a significant structural or design defect for which an out-of-possession landlord may be held liable.

Fuentes-Gil v, Zear LLC, NY Slip Op 04964 (1st Dep't July 5, 2018)

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A dismissed unjust enrichment claim.

A valid and enforceable contract governing the subject matter at issue precludes recovery in quasi-contract for events arising out of that subject matter.

Lantau Holdings Ltd. v. General Pac. Group Ltd., NY Slip Op 04952 (1st Dep't July 3, 2018)

Here is the decision. 

Limitations period for misappropriation of trade secrets, tortious interference, and unfair competition.

These causes of action allege injuries to property, and, pursuant to CPLR 214[4], they are governed by a three-year statute of limitations.

CDx Labs., Inc. v. Zila, Inc., NY Slip Op 04692 (2d Dep't June 27, 2018)

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Construction subcontracts.

Under New York law, clauses in a construction subcontract, incorporating prime contract clauses by reference, bind the subcontractor only as to the prime contract provisions relating to the scope, quality, character, and manner of the work to be performed by the subcontractor.

Naupari v. Murray, NY Slip Op 04945 (1st Dep't July 3, 2018)

Here is the decision.

Crossing guards and the City's liability.

Dismissal was granted as to the City in this action where the infant plaintiffs, on their way to school, were walking within the crosswalk when one of them was struck by a school bus owned by defendant-bus company and operated by defendant-bus driver. The City had assigned a crossing guard to assist children at the intersection, but the guard called out sick that morning.

In order to establish that the City voluntarily assumed a duty, a plaintiff must show: (1) an assumption by the City's agents, through promises or action, of an affirmative duty to act on behalf of the plaintiff; (2) knowledge on the part of the City's agents that inaction could lead to harm; (3) some form of direct contact between the City's agents and the plaintiff; and (4) the plaintiffs justifiable reliance.  Here, as a matter of law, the City had assumed no special duty as to the plaintiffs. There was no direct contact between the City's agents and the plaintiffs. The fact that the guard, when on duty, greeted the plaintiffs and they relied on the guard's instructions does not create a special duty.

Ivan D. v. Little Richie Bus Serv. Inc., NY Slip Op 04823 (1st Dep't June 28, 2018)

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A viable malpractice claim.

Plaintiff sufficiently pled a claim as against successor firm and the prior firm. Successor counsel had the chance to protect plaintiff's rights by seeking discretionary leave, pursuant to General Municipal Law § 50-e(5), to serve a late notice of claim. Whether the motion would have succeeded is up to the trier of fact. Denying dismissal is not speculative, as the trial court will weigh the established factors in exercising its § 50-e(5) discretion. Prior counsel failed to serve a timely notice of claim as of right in the underlying personal injury action. Plaintiff has a viable claim in spite of the fact that the successor firm was substituted as counsel before the expiration of time to move to serve a late notice. The substitution will be deemed a superseding and intervening act severing malpractice liability only if it is determined that the motion to file a late claim would have been successful.

Liporace v. Neimark & Neimark, LLP, NY Slip Op 04668 (1st Dep't June 26, 2018)

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Service other than by personal delivery.

Pursuant to CPLR 317, a defendant who is served other than by personal delivery may defend the action within one year after learning of entry of the judgment on a finding that the summons was not  received in time to defend and that there is a potentially meritorious defense.

Benchmark Farm, Inc. v. Red Horse Farm, LLC, NY Slip Op 04522 (2d Dep't June 20, 2018)

Here is the decision.

Dismissal of duplicative claims.

The conversion and aiding and abetting conversion claims are dismissed as duplicative of the breach of contract claim, because they are predicated on the breach of contract and allege no facts that would give rise to tort liability.

Johnson v. Cestone, NY Slip Op 04512 (1st Dep't June 19, 2018)

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Summary judgment to a non-moving party.

The Appellate Division has authority to search the record and award summary judgment to the nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court, pursuant to CPLR 3212[b].

Bank of N.Y. v. Penalver, NY Slip Op 04521 (2d Dep't June 20, 2018)

Here is the decision.