Rule of Professional Conduct 1.5(g)(1) and splitting fees.

A lawyer may not divide a fee for legal services with another lawyer who is not associated with the same firm unless the division is in proportion to the services performed by each, and, by a writing given to the client, each lawyer assumes joint responsibility for the representation.

O'Dwyer v. Law Offs. of Rex E. Zachofsky, PLLC, NY Slip Op 01728 (March 12, 2019)

Here is the decision.

Retainer agreements and legal fees.

An attorney's failure to comply with the letter of engagement rule, codified at 22 NYCRR 1215.1, does not preclude the recovery of legal fees under a theory of account stated.

Carling v. Peters, NY Slip Op 01713 (1st Dep't March 12, 2019)

Here is the decision.

Limitations on liability.

While contractual limitations on liability are enforceable, they do not, as a matter of public policy, extend to conduct that is grossly negligent.

S.A. De Obras y Servicios, COPASA v. Bank of Nova Scotia, NY Slip Op 01706 (March 12, 2019)

Here is the decision.

Indemnification.

The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party. The party seeking indemnification must have delegated exclusive responsibility for the duties giving rise to the loss to the party from whom indemnification is sought, and must not have committed any actual wrongdoing itself. Common-law indemnification is warranted where a defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is purely vicarious. Since the predicate of common-law indemnity is vicarious liability, a party who has itself actually participated to some degree in the wrongdoing cannot invoke the doctrine.

Board of Mgrs. of Olive Park Condominium v. Maspeth Props., LLC, NY Slip Op 01554 (2d Dep't March 6, 2019)

Here is the decision.

Vacating a default.

Where a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), the court must resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur.

Bedessee Imports, Inc. v. Najjar, NY Slip Op 01552 (2d Dep't March 6, 2019)

Here is the decision.

CPLR 5515[1].

The Appellate Division cannot consider an issue that is not specified in the notice of appeal.

McCabe v. Consulate Gen. of Can., NY Slip Op 01651 (1st Dep't March 7, 2019)

Here is the decision.

CPLR 2014.

Unless the settlement agreement is made in open court, it is binding only if it is in a writing subscribed by an attorney or reduced to the form of an order and entered.

Amerally v. Liberty King Produce, Inc., NY Slip Op 01550 (2d Dep't March 6, 2019)

Here is the decision.

Proximate cause and intervening acts.

The issue is whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence. The mere fact that other persons share some responsibility for the plaintiff's harm does not absolve the defendant from liability because there may be more than one proximate cause of an injury.

Demetro v. Dormitory Auth. of the State of N.Y., NY Slip Op 01642 (1st Dep't March 7, 2019)

Here is the decision.

CPLR 3025(b).

In the complaint, the plaintiff inadvertently alleged that the accident involved a slip and fall in the parking lot instead of on the sidewalk in front of the premises. When the defendant moved to dismiss on the basis of the error, the plaintiff sought leave to amend. Leave was granted absent any prejudice to the defendant resulting from the pleading mistake. The motion papers included the proposed pleading and sufficiently specified the changes to be made, and the proposed amendment was clearly not patently insufficient or devoid of merit.

Yu Tian Li v. Louie & Chan Rest., NY Slip Op 01529 (1st Dep't March 5, 2019)

Here is the decision.

Waiver of a claim in equity.

Where a contract specifies that any claims shall be based on the contract and the contract price, a claim for unjust enrichment is waived and will be dismissed.

Federated Fire Protection Sys. Corp. v. 56 Leonard St., LLC, NY Slip Op 01538 (1st Dep't March 5, 2019)

Here is the decision.

CPLR 4518[a].

The movant must provide a sufficient foundation for the motion court to consider the documents submitted as business records.

A&W Egg Co., Inc. v. Tufo's Wholesale Dairy, Inc., NY Slip Op 01498 (1st Dep't February 28, 2019)

Here is the decision.