Summary judgment and discovery.

Plaintiff's argument that summary judgment should be denied because of a need for further discovery is unavailing since plaintiff only makes conclusory claims that unspecified evidence may be uncovered. While defendants moved for summary judgment just after the issue had been joined, depositions had been taken of all witnesses to the allegedly defamatory statements.

Thome v. Alexander and Louisa Calder Found., NY Slip Op 05625 (1st Dep't July 11, 2019)

Here is the decision.

An insufficient opposition to summary judgment.

In this personal injury action, the property owner-defendants' affidavits were insufficient to show, prima facie, that they did not owe a duty of care to the plaintiff.  The affidavits were conclusory, did not identify the source of their conclusions regarding the corporate relationships and responsibilities, did not refer to or include any supporting documentation or files, did not state that they were based upon personal knowledge, and failed to supply authenticated copies of the relevant leases or contracts.

Andriienko v. Compass Group USA, Inc., NY Slip Op 05506 (2d Dep't July 10, 2019)

Here is the decision.

The continuous representation doctrine.

The doctrine does not save an otherwise time-barred malpractice claim where the defendant-attorney was retained under two separately executed agreements.

Etzion v Blank Rome, LLP, NY Slip Op 05468(1st Dep't July 9, 2019)

Here is the decision.

The advocate-witness rules.

The rules, as stated in 22 NYCRR 1200.0, provide guidance, but they are not binding authority in determining whether a party's attorney should be disqualified during litigation. Pursuant to Rule of Professional Conduct 3.7(a), "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact."  At 3.7[a][3], there is an exception when "disqualification of the lawyer would work substantial hardship on the client." In addition, the rule generally does not apply where the attorney is a litigant.  However, estate representatives represent the interests of the estate's beneficiaries, rather than their own, and so the advocate-witness rule will prevail over a fiduciary-attorney's right to self-representation.

Greenberg v. Grace Plaza Nursing & Rehabilitation Ctr., NY Slip Op 05390 (2d Dep't July 3, 2019)

Here is the decision.

CPLR 7513.

Arbitrators are not permitted to award attorneys' fees, with three limited exceptions: (1) where a statute provides for the award; (2) where the award is authorized by an express provision in the agreement;  (3) where it is unmistakably clear that the parties intended the award.

Steyn v. CRTV, LLC, NY Slip Op 05341 (1st Dep't July 2, 2019)

Here is the decision.

A motion to compel arbitration.

Defendants' motion was denied because plaintiff was not a party to the agreement containing the arbitration clause, and, a separate agreement required that plaintiff's claims be litigated in New York.

BML Props. Ltd. v. China Constr. Am. Inc.,NY Slip Op 05339 (1st Dep't July 2, 2019)

Here is the decision.

A process server's affidavit.

Ordinarily, the affidavit establishes a prima facie case as to the method of service, and gives rise to a presumption of proper service. However, when the defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the process server's affidavit, the prima facie showing is rebutted. The plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing.

Bank of N.Y.Mellon v. Ortiz, NY Slip Op 05378 (2d Dep't July 3, 2019)

Here is the decision.

Contracts for the sale of real property.

To satisfy the statute of frauds, a memorandum evidencing the contract and subscribed by the party to be charged must designate the parties, identify and describe the subject matter, and state all of the essential terms of a complete agreement.

443 Jefferson Holdings, LLC v. Sosa, NY Slip Op 05376 (2d Dep't July 3, 2019)

Here is the decision.

A dismissed malpractice claim.

Since damages in a legal malpractice case are designed to make the injured client whole, a plaintiff who fails to plead actual damages fails to state a claim.

Miami Capital, LLC v. Hurwitz, NY Slip Op 05332 (1st Dep't July 2, 2019)

Here is the decision.

A guarantor's liability.

The guarantee states that it is absolute and unconditional, and that, in pertinent part, it "shall be unconditional and irrevocable, irrespective of . . . (a) the genuineness, validity or enforceability of any of the Loan Documents . . . or (g) any other circumstance, occurrence or condition . . . which might otherwise constitute a legal or equitable defense."  The guarantor-defendant's claim of fraud in the inducement is barred.

Suttongate Holdings Ltd. v. Lanconm Mgt. N.V., NY Slip Op 05196 (1st Dep't June 27, 2019)

Here is the decision.