Spoliation sanctions.

The imposition of sanctions is not limited to cases where the evidence was destroyed willfully or in bad faith, as the negligent loss of evidence can be just as fatal to the other party's ability to present a defense. Where the striking of a pleading would be too severe, an adverse inference charge at trial would be appropriate.

Alphas v. Smith, NY Slip Op 02030 (1st Dep't March 19, 2019)

Here is the decision.

Affidavits.

An affidavit that directly contradicts the affiant's prior testimony creates a feigned issue of fact and is insufficient to defeat a properly supported motion for summary judgment.

Laniox v. City of New York, NY Slip Op 02026 (1st Dep't March 19, 2019)

Here is the decision.

The continuous representation doctrine.

Under the doctrine, tolling of the limitations period ends once the client is informed or otherwise put on notice of the attorney's withdrawal from representation.

RJR Mech. Inc. v. Revoldt, NY Slip Op 01844 (1st Dep't March 14, 2019)

Here is the decision.

Opposing summary judgment.

A defendant may not use uncertified documents to raise triable issues of fact in opposition to a motion for summary judgment.

Garcia v. McCrea, NY Slip Op 01842 (1st Dep't March 14, 2019)

Here is the decision.

Confessions of judgment.

Pursuant to CPLR 3218[a][1], an affidavit of a confession of judgment must state the sum for which judgment may be entered.  If the judgment is for money due or to become due, 3218[a][2] requires that the affidavit state the facts out of which the debt arose and that the sum confessed is justly due or to become due.

Parker Waichman, LLP v. Getreu, NY Slip Op 01783 (2d Dep't March 13, 2019)

Here is the decision.

Taxis, seatbelts, and liability.

The failure to provide seatbelts in a taxicab is a violation of Vehicle and Traffic Law § 383, and constitutes negligence as a matter of law. Where the injured plaintiff failed to wear an available seatbelt, that failure goes to damages, not liability. However, that is not the case where the vehicle owner did not provide seatbelts in the first place.

Grant v. AAIJ African Mkt. Corp., NY Slip Op 01823 (1st Dep't March 14, 2019)

Here is the decision.

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.