Remedial affidavits.

Practice point:  In determining whether the pleading states a cause of action, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint.

A. Servidone, Inc./B. Anthony Constr. Corp., J.V. v. State of New York, NY Slip Op 00082 (2d Dep't January 9, 2019)

Here is the decision.

Unjust enrichment.

Practice point:  To sufficiently plead the cause of action, a plaintiff must show that the defendant was enriched at the plaintiff's expense, and that it is against equity and good conscience to permit the defendant to keep what the plaintiff seeks to recover.

Student note:  Although the plaintiff does not have to allege privity, there must be a connection or relationship between the parties that could have caused reliance or inducement on the plaintiff's part.

McMurray v. Hye Won Jun, NY Slip Op 00065 (1st Dep't January 8, 2019)

Here is the decision.

CPLR 202.

Practice point:  This is New York's borrowing statute, which requires a claim to be timely under both the New York limitations period and that of the jurisdiction where the claim is alleged to have arisen.

Soloway v. Kane Kessler, PC, NY Slip Op 00026 (1st Dep't January 3, 2019)

Here is the decision.

CPLR 203(f).

Practice point:  Pursuant to the statute, a plaintiff may correct a pleading error by adding a new claim or a new party after the expiration of the statutory limitations period. There are three conditions for a claim against a newly named defendant to relate back to a claim against a defendant already named: (1) the claims arise out of the same conduct, transaction, or occurrence; (2) the new party is united in interest with the original defendant; and (3) the new party knew or should have known that, but for a mistake as to the identity of the proper parties, the action would have been brought against it.

Student note:  Codifying the relation back doctrine, CPLR 203(f) provides that "[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions [or] occurrences . . . to be proved pursuant to the amended pleading."

Ramirez v. Elias-Tejada, NY Slip Op 00021 (1st Dep't January 3, 2019)

Here is the decision.

The alleged breach of an attorney's fiduciary duty.

Practice point:  The cause of action is governed by the same standard as a legal malpractice claim, and it fails if the plaintiff does not establish the "but for" element.

Knox v. Aaronson, Mayefsky & Sloan, LLP, (1st Dep't December 27, 2018)

Here is the decision.

An attorney's affirmation in support of a motion to dismiss.

Practice point:  The fact that the defendant had submitted only an attorney's affirmation is not fatal to its motion, as the affirmation incorporated by reference deposition testimony which had been submitted by the co-defendant.

Canty v. 133 E. 79th Street, LLC, NY Slip Op 09022 (1st Dep't December 27, 2018)

Here is the decision.

The burdens on a defendant's motion for summary judgment in a medical malpractice action.

Practice point:  The physician-defendant must establish, prima facie, either that there was no departure from the accepted community standards of practice, or that, if there were]such a departure, it was not a proximate cause of the plaintiff's injuries. On this showing, the burden shifts to the plaintiff to rebut the defendant's prima facie showing with evidentiary facts or materials that demonstrate the existence of a triable issue of fact.

Salgado v. North Shore Univ. Hosp., NY Slip Op 08967 (2d Dep't December 26, 2018)

Here is the decision.

Admissibility of electronic records.

Practice point:  Copies of electronic records from the Secretary of State's official government website are admissible despite being uncertified, and the motion court may consider them.

Gibson v. U'SAgain Holdings, LLC, NY Slip Op 09012 (1st Dep't December 27, 2018)

Here is the decision.

New Year's 1971.

A motion to punish a party for civil contempt.

Practice point:  Granting the motion requires a finding that (1) there was a court's lawful order, clearly expressing an unequivocal mandate; (2) the party against whom contempt is sought disobeyed the order; (3) the disobedient party had knowledge of the order and its terms; and (4) the movant was prejudiced by the non-movant's offending conduct.  It is not necessary that the disobedience be deliberate or willful; regardless of motive, the mere act of disobedience is sufficient if it defeats, impairs, impedes, or prejudices the rights or remedies of a party.

Student note:  The motion is addressed to the court's sound discretion, and the movant bears the burden of proving the contempt by clear and convincing evidence.

P.B. #7, LLC v 231 Fourth Ave. Lyceum, LLC, NY Slip Op 08945 (2d Dep't December 26, 2018)

Here is the decision.

Hearsay on a summary judgment motion.

Practice point:  Hearsay, without more, is insufficient to defeat the motion.

Student note:  A declaration against interest is not an exception to the hearsay rule if the declarant was unaware of the adverse nature of the statement.

Nava-Juarez v. Mosholu Fieldston Realty, LLC, NY Slip Op 08744 (1st Dep't December 20, 2018)

Here is the decision.