December 7, 1941

Waiver of attorney-client privilege.

Deposition testimony by the CEO and Chairman of defendants' corporate parent, Rolta India, waived defendants' attorney-client privilege as to communications had with various counsel representing them in New York courts and in India. The CEO's testimony that defendants did not comply with post-judgment orders calling for a turnover of assets to a receiver because the turnover and receivership orders had yet to be domesticated in India in accordance with Indian law affirmatively put the subject matter of their privileged communications in litigation.  The CEO testified that defendants' counsel in India advised noncompliance with the post-judgment orders pending domestication of such orders in India, and that defendants' U.S. counsel would yield to the advice of its Indian counsel on the matter. Therefore, invasion of the privilege was required for plaintiffs to adequately contest the validity of defendants' defense in failing to comply with the turnover and receivership orders, especially since contempt proceedings had already been brought against the president of Rolta India's primary subsidiary and contempt proceedings were in the process of being commenced against other principals.

Pala Assets Holding Ltd. v. Rolta, LLC, NY Slip Op 06642 (1st Dep't November 22, 2022)

Here is the decision.

Contractual indemnification.

A contract that provides for indemnification will be enforced as long as the intent to assume such a role is sufficiently clear and unambiguous. A court may not interpret a contracted indemnification provision in a manner that would render it meaningless. Therefore, when the intent is clear, an indemnification agreement will be enforced even if it provides indemnity for one's own or a third party's negligence.

Alicea v. Medjugorje Realty, LLC, NY Slip Op 06455 (2d Dep't November 16, 2022)

Here is the decision.

Punitive damages.

Even where there is gross negligence, punitive damages are awarded only in singularly rare cases such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public.

Arana v. A.O. Smith Water Prods. Co., NY Slip Op 06542 (1st Dep't November 17, 2022)

Here is the decision.

Discovery.

The Appellate Division reversed the motion court and granted the parties' cross motions to extend the time to file the note of issue and defendant's motion for leave to complete discovery and depose plaintiff's expert. Absent the extension, the parties could neither move forward to trial nor complete the discovery necessary to move forward to trial, thereby frustrating the strong public policy favoring open disclosure to allow the parties to adequately prepare, pursuant to CPLR 3101[a.]. In addition, defendant demonstrated a need for additional discovery and to depose plaintiff's expert, who was hired to calculate damages in this commercial case.

361 Broadway Assoc. Holdings, LLC v. Foundations Group I, Inc., NY Slip Op 06571 (1st Dep't November 17, 2022)

Here is the decision.

Sanctions for spoliation.

Pursuant to CPLR 3126, a party that seeks sanctions for negligent or intentional spoliation of evidence must show that the party in control of the evidence was obliged to preserve it, that the evidence was destroyed with a culpable state of mind, and that the evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense. Sttriking a pleading is such a drastic sanction that, in the absence of willful or contumacious conduct, the court must consider the prejudice that resulted from the spoliation.

Aldo v. City of New York, NY Slip Op 06454 (2d Dep't November 16, 2022)

Here is the decision.

Appellate practice.

In this personal injury action, plaintiffs' motion for summary judgment on the issue of liability was granted. Defendants appealed, and the motion court's order was affirmed. Plaintiffs' request for certain affirmative relief was not properly before the Appellate Division, since plaintiffs did not cross-appeal from the order. 

Ahmed v. Fernando, NY Slip Op 06453 (2d Dep't November 16, 2022)

Here is the decision.

An age discrimination claim.

Defendant established its entitlement to summary judgment dismissing the complaint, as it articulated a legitimate, nondiscriminatory reason for firing plaintiff from his employment as a cleaner, namely, plaintiff's unsatisfactory work performance and his failure to improve despite multiple warning letters. Defendant submitted tenant complaints regarding the uncleanliness of the bathrooms and the warning letters it issued to plaintiff about his poor performance,  supporting its claim that plaintiff was terminated not because of his age, but because of his failure to adequately perform his duties. As further evidence that plaintiff was not fired because of his age, defendant showed that it did not fill plaintiff's position after he was terminated but outsourced his job duties to a third-party cleaning service. 

In opposition, plaintiff presented no evidence tending to show that the tenant complaints or the warning letters were inaccurate, much less designed to supply a pretext for age discrimination. Nor does plaintiff show how defendant's failure to give him vacation wages before his vacation was to begin supports a finding of pretext under the circumstances. In addition, plaintiff's assertion that defendant failed to sufficiently warn him about his unsatisfactory job performance is undermined by his own testimony that he saw the letter that suspended him for three days based on tenant complaints regarding his job performance.

The two isolated comments made by plaintiff's supervisor about his intent to retire were merely stray remarks that, without more, do not constitute evidence of discrimination. Even if these remarks suggested bias, defendant established that the supervisor was not involved in the decision to terminate plaintiff's employment, and had no power to hire, fire, or discipline him.

Ahmed v. West 46th St. Mgt., LLC, NY Slip Op 06417 (1st Dep't November 15, 2022)

Here is the decision.

Personal jurisdiction over an out-of-state defendant.

Pursuant to CPLR 302(a)(3), a plaintiff's economic injury in New York is insufficient to confer jurisdiction. The situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred.

HH Trinity Apex Invs. LLC v. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., NY Slip Op 06321 (1st Dep't November 10, 2022)

Here is the decision.

Photograph evidence in a slip-and-fall action.

In considering defendant's summary judgment motion, the court properly disregarded the Google Maps photos that defendant submitted in its reply papers. The photos purportedly were taken months before the accident. and there was no affidavit by a person with knowledge of the photos' origins, or knowledge of whether they fairly and accurately portrayed the condition of the sidewalk at the time of accident.

Mercedes v. 680 SN LLC, NY Slip Op 06323 (1st Dep't November 10, 2022)

Here is the decision.

Appellate practice.

The doctrine of the law of the case does not bind an appellate court to a trial court ruling.

Morgan Stanley Private Bank, N.A. v. Ceccarelli, NY Slip Op 06324 (1st Dep't November 10, 2022)

Here is the decision.