Law of the case, and equitable affirmative defenses.

Practice point: Where issues have been raised and determined in a prior appeal, or if those issues could have been raised, their reconsideration is barred by the doctrine of law of the case, pursuant to  CPLR 5501[a]. The doctrine applies only to legal determinations that were necessarily resolved on the merits in the prior decision, and to the same questions presented in the same case.

Student note: On a claim to recover damages for unjust enrichment, equitable affirmative defenses could be properly asserted since the action is not one exclusively at law.

Case: Moran Enters., Inc. v. Hurst, NY Slip Op 04980 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Dismissal for failure to appear at a calendar call.

Common law indemnification.

Practice point: The key element of the cause of action is not a duty running from the indemnitor to the injured party, but a separate duty owed the indemnitee by the indemnitor.

Student note: Indemnity may be based on an express contract, but more commonly the indemnity obligation is implied, based on the law's notion of what is fair and proper as between the parties.

Case: Lovino, Inc. v. Lavallee Law Offs., NY Slip Op 04977 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Law of the case, and equitable affirmative defenses.

Motion to dismiss a legal malpractice claim.

Practice point: The motion, pursuant to CPLR 3211(a)(1), may be granted only if the movant’s documentary evidence utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law. Here, the defendants submitted a retainer agreement stating that there was "no assurance or guarantee of the outcome," and also that the agreement "does not include representation for . . . legal services after the Judgment of Trial Court . . . [or] [t]he Appeal of any decisions of the Trial Court." In opposing, the plaintiff’s affidavit detailed how the defendants failed to pursue a motion for leave to reargue or other application to modify a decision in the underlying action, submitted deficient or inappropriate proposed findings of fact and conclusions of law, and failed to adequately address various necessary issues during the trial. The court found that the retainer agreement was insufficient documentary evidence to dispose of those allegations.

Student note: A court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and upon considering such an affidavit, the facts alleged therein must also be assumed to be true.

Case: Harris v. Barbera, NY Slip Op 04973 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Common law indemnification

Experts' affidavits and amending bills of particulars.

Practice point: The court declined to consider the affidavit of the plaintiff's expert, since the plaintiff failed to identify the expert in pretrial disclosure, and served the affidavit, which was elicited solely to oppose the motion for summary judgment, after filing a note of issue and certificate of readiness attesting to the completion of discovery.

Student note: The court denied that branch of the plaintiff's cross motion which was for leave to amend her bill of particulars. The plaintiff failed to set forth any excuse for her delay in seeking to amend her bill of particulars, which was for more than two years after the note of issue was filed.

Case: Ames v. Kamco Supply Corp., NY Slip Op 04960 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion to dismiss a legal malpractice claim.

Notices of pendency.

Practice point: Pursuant to CPLR 6513, the notice is valid for three years from the date of filing, and may be extended for additional three-year periods upon a showing of good cause. However, the extension must be requested prior to the expiration of the prior notice.

Student note: A notice of pendency that has expired without extension is a nullity, and a lapsed notice may not be revived.

Case: Ampul Elec., Inc. v. Village of  Port Chester, NY Slip Op 04705 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Experts’ affidavits and amending bills of particulars.

Preliminary injunctions.

Practice point: A motion for a preliminary injunction opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading, but this power does not extend to an evaluation of conflicting evidence.

Student note: The motion court may not, on its own initiative, convert a motion for a preliminary injunction into one for summary judgment without giving adequate notice to the parties and affording them an opportunity to lay bare their proof.

Case: Alexandre v. Duvivier, NY Slip Op 04704 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Notices of pendency.

Joint representation conflicts.

Practice point: There is the potential for a conflict resulting from the firm’s joint representation, as each defendant has a competing interest in minimizing its proportional share of the damages.

Student note: An attorney may not place himself in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional relationship, and any doubt as to the existence of a conflict of interest must be resolved in favor of disqualification.

Case: Roddy v. Nederlander Producing Co. of Am., Inc., NY Slip Op 04685 (1st Dept. 2012).

 Here is the decision.

Tomorrow’s issue: Preliminary injunctions.

Bus drivers' negligence.

Practice point: Defendant made a prima facie showing that defendant-bus driver acted reasonably in an emergency situation not of his own making, and thus was not negligent. The bus driver testified that the bus was crossing an intersection when a car, traveling in the opposite direction, crossed over the double yellow lines and cut in front of the bus in order to make a left turn, forcing the bus driver to apply the brakes.

Student note: Plaintiff's testimony that the bus driver was "speeding" was insufficient to raise a triable issue of fact.

Case: Vega v. MTA Bus Co., NY Slip Op 04681 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Joint representation conflicts.

Remedies for an attorney discharged without cause.

Practice point: The three remedies of an attorney discharged without cause — the retaining lien, the charging lien, and the plenary action in quantum meruit — are not exclusive but cumulative, and the attorney does not waive the right to commence an immediate plenary action for a judgment against the client by commencing a proceeding to fix the amount of the charging lien.

Student note: An attorney may enforce the lien in a court other than that before which the  services were rendered.

Case: Balestriere PLLC v. BanxCorp, NY Slip Op 04675 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Bus drivers’ negligence.

Stating a cause of action sounding in legal malpractice.

Practice point: Plaintiff alleged that she was injured when she was struck in the neck by a piece of lumber; that defendant was negligent in urging her to settle the underlying personal injury action, and in advising her that an MRI was not necessary and that its results would not lead to a more favorable outcome of her case; that, after settling the case for $20,000, she obtained an MRI showing a disc herniation that required surgical intervention; that she remains permanently disabled; that defendant's negligence proximately caused her to sustain damages by not gaining the fair value for her case; and that she would have been successful in the underlying action had defendants exercised due care. These allegations were sufficient to state the claim.

Student note: Plaintiff was not required to show a likelihood of success in the underlying action, but was required only to plead facts from which it could reasonably be inferred that defendant's negligence caused her loss.

Case: Polanco v. Greenstein & Milbauer, LLP, NY Slip Op 04385 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Remedies for an attorney discharged without cause.

Service of a petition to vacate an arbitration award.

Practice point: Petitioner failed to show that the petition was served on a person authorized to receive service of process pursuant to CPLR 311(a)(1). The petitioner relied on a provision of the parties' franchise agreement which concerns only service of a notice required by the agreement, not service of process required by the CPLR.

Student note: In addition, commencement of the proceeding was untimely, since the purported service occurred more than 90 days after the award was received.

Case: Cere v. Subway Intl. BV, NY Slip Op 04384 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Stating a cause of action sounding in legal malpractice.

Sanctions for discovery violations.

Practice point: The general rule is that a court must impose a sanction commensurate with the particular disobedience it is designed to punish. Before a court invokes the drastic remedy of striking a pleading, or even of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious.

Student note: The nature and degree of a penalty to be imposed under CPLR 3126 is addressed to the court's discretion, and the statute permits courts to fashion such orders as are just.

Case: Zakhidov v. Boulevard Tenants Corp., NY Slip Op 04334 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Service of a petition to vacate an arbitration award.

Motions for leave to renew.

Practice point: The motion, pursuant to CPLR 2221(e), may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion, but the movant must offer a reasonable justification for the failure to present such facts on the original motion.

Student note:  Law office failure can be accepted as a reasonable excuse in the exercise of the court's discretion.

Case: Gordon v. Boyd, NY Slip Op 04320 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Sanctions for discovery violations.

Prima facie torts.

Practice point: The requisite elements for the cause of action include (1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, (4) by an act or series of acts which are otherwise legal.

Student note: Additionally, central to a cause of action alleging prima facie tort is that the plaintiff's intent was motivated solely by malice or disinterested malevolence.

Case: Diorio v. Ossining Union Free School Dist., NY Slip Op 04314 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motions for leave to renew.

Labor Law claims for falling at the construction site.

Practice point: Plaintiff-stonemason alleged that he was injured when he tripped over a small stone while carrying a 100-pound stone across an open, grassy area. The small stone was either created during the delivery of the stones to the worksite, or when the larger stones were sized by plaintiff and his coworkers.

The § 240(1) cause of action was dismissed because the record established that the impetus for the heavy stone's fall was plaintiff's tripping on ground-level, rather than the direct consequence of gravity.

Student note: Plaintiff did not have a viable § 241(6) claim. The Industrial Code provisions relied upon, 12 NYCRR 23-1.7(d) and 12 NYCRR 23-2.1(a)(1), were inapplicable since the accident occurred in an open, grassy area, rather than a passageway or walkway. Moreover, the small stone on which plaintiff allegedly fell was an unavoidable and inherent result of the work being performed at the site.

Case: Ghany v. BC Tile Contrs., Inc., NY Slip Op 04211 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Prima facie torts.

The quality assurance privilege.

Practice point: The privilege, set forth in Education Law § 6527(3), shields from disclosure certain records and reports generated by a hospital in performing either a medical malpractice or quality assurance review. The statute confers confidentiality on three categories of documents: records relating to the performance of medical review and quality assurance functions; records reflecting participation in a medical and dental malpractice prevention program; and reports required by the New York State Department of Health, pursuant to Public Health Law § 2805-l (Education Law § 6527[3]).

Student note: The party seeking to invoke the privilege has the burden of demonstrating that the document sought was prepared in accordance with a relevant statute.

Case: Daly v. Brunswick Nursing Home, Inc., NY Slip Op 04124 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Labor Law claims for falling at the construction site.

Motions to dismiss.

Practice point: A party may move to dismiss a defense on the ground that a defense is not stated or has no merit, pursuant to CPLR 3211[b].

Student note: In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference. If there is any doubt as to the availability of a defense, it should not be dismissed.

Case: Chestnut Realty Corp. v. Kaminski, NY Slip Op 04121 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: The quality assurance privilege.

Appealing a determination of fact.

Practice point: The Supreme Court determined that the defendant's disclaimer of coverage was untimely, and the defendant appealed from so much of the order as made that determination. The appeal was dismissed because findings of fact and conclusions of law are not independently appealable.

Student note: To the extent that the defendant raises an argument on appeal regarding its motion for leave to amend its answer, that motion was not addressed by the Supreme Court, and, thus, remains pending and undecided.

Case: Baez v. First Liberty Ins. Corp., NY Slip Op 04118 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motions to dismiss.

'Falling object' liability.

Practice point: Liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured. Liability may be imposed where an object or material that fell, causing injury, was a load that required securing for the purposes of the undertaking at the time it fell.

Student note: The applicability of the statute in a falling object case does not depend upon whether the object has hit the worker. The relevant inquiry is whether the harm flows directly from the application of the force of gravity to the object.

Case: Andresky v. Wenger Constr. Co., Inc., NY Slip Op 04116 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Appealing a determination of fact.

Orders of dismissal.

Practice point: Plaintiff's motion to vacate the order of dismissal should have been granted since, whether the dismissal was pursuant to CPLR 3216(b)(3) or CPLR 3126, it did not comply with statutory requirements. The case was marked dismissed after plaintiff failed to comply with a status conference order directing him to serve and file a note of issue within seven days. That order did not comply with the requirements of CPLR 3216(b), in that plaintiff was not given 90 days to file a note of issue, and the order did not contain a statement that a default  in complying with the demand will serve as a basis for a motion for dismissal as for unreasonably neglecting to proceed. Since there was no motion pursuant to CPLR 3216(b)(3), or notice to plaintiff, the case could not be dismissed for failure to prosecute.

Student note: The status conference order is not appealable as of right because it is not an order which determined a motion made upon notice.

Case: Armstrong v. B.R. Fries & Assoc., Inc., NY Slip Op 04071 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: ‘Falling object’ liability.

The 90-day notice.

Practice point: Having received a 90-day notice, the plaintiff was required either to serve and file a timely note of issue or move, before the default date, for an extension of time pursuant to CPLR 2004. The plaintiff did neither. To avoid dismissal of the action, the plaintiff was required to show a justifiable excuse for the delay and a potentially meritorious cause of action, pursuant to CPLR 3216[e].

Student note: Plaintiff’s showing of a potentially meritorious cause of action requires an affidavit by one with personal knowledge of the facts.

Case: Colon v. Papatolis, NY Slip Op 03975 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Orders of dismissal.