Conflict of laws and the enforceability of employment agreements.

Practice point:  Defendants moved for partial summary judgment as to the unenforceability of nonsolicitation agreements as overbroad. While, by their terms, the agreements were to be governed by and construed in accordance with Delaware law, the parties differed as to whether New York law or Delaware law should be applied.

There is no actual conflict unless each jurisdiction's laws provide different substantive rules that are relevant to the issue at hand and have a significant possible effect on the trial's outcome.

Here, as the parties' briefs disclosed no such conflict, the Appellate Division applied the law of New York as the forum state.

Student note:  Under New York law, an employee's noncompetition agreement is reasonable and, therefore, enforceable only if it: (1) is no greater than is required for the protection of the employer's legitimate interest; (2) does not impose undue hardship on the employee; and (3) is not injurious to the public.

Case:  TBA Global, LLC v Proscenium Events, LLC, NY Slip Op 01266 (1st Dept. 2014).

Here is the decision.

Monday's issue: A claim of unjust enrichment, and a 3211(a)(7) motion to dismiss.

An easement by necessity.

Practice point:  The party asserting that it has an easement by necessity bears the burden of establishing by clear and convincing evidence that there was a unity and subsequent separation of title, and that at the time of severance, an easement over the servient estate was absolutely necessary to obtain access to the party's land.

Student  note:  The necessity must exist in fact and not as a mere convenience, and must be indispensable to the reasonable use of the adjacent property.

Case:  Faviola, LLC v. Patel, NY Slip Op 01447 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Conflict of laws and the enforceability of employment agreements.

Labor Law and a fall from a ladder.

Practice point:  Not every fall from a ladder establishes that the ladder did not provide proper protection Here, the plaintiffs' own submissions demonstrated triable issues of fact as to how the injured plaintiff's accident occurred, including whether he fell because he merely lost his balance. In any event, the defendants and the third-party defendant demonstrated that the plaintiffs' motion was premature, as further discovery may lead to relevant evidence, pursuant to CPLR 3212[f].

The Appellate Division found that the Supreme Court properly denied the plaintiffs' motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant-school district, without prejudice to renew after discovery.

Student note:  In order to establish liability under § 240(1), there must be a violation of the statute, and the violation must be a proximate cause of the plaintiff's injury.

Case:  Degen v. Uniondale Union Free Sch. Dist., NY Slip Op 01146 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  An easement by necessity.

A motion for voluntary discontinuance.

Practice point:  Absent a showing of special circumstances, including prejudice to a substantial right of the defendant or other improper consequences, a motion for a voluntary discontinuance should be granted without prejudice. Here, there was no such showing if the plaintiff were permitted to commence a second action for the same relief in another venue. Any prejudice to the defendants was properly obviated by awarding costs and an attorney's fee as compensation for the time expended in the defense of the action to date. Accordingly, the Appellate Division found no valid reason for the Supreme Court's granting plaintiff's motion with prejudice.

Student note:  The plaintiff is not required to demonstrate any basis for seeking a voluntary discontinuance.

Case:  American Tr. Ins. Co. v. Roberson, NY Slip Op 01144 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Labor Law and a fall from a ladder.

An auto accident, summary judgment, and comparative negligence.

Practice point:  There can be more than one proximate cause of an accident, and both drivers have a duty to exercise reasonable care under the circumstances to avoid an accident. As a result, even where there is evidence that another driver involved in the accident was negligent as a matter of law, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law. So, a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident.

Student note: A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law.

Case:  Adobea v. Junel, NY Slip Op 01143 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A motion for voluntary discontinuance.

Disclosure of privileged medical records.

Practice point:  The Appellate Division found that the Supreme Court properly denied the plaintiffs' motion for a protective order relating to the disclosure of medical records outside the period of time covered by the  pregnancy. at issue in this medical malpractice action. The plaintiff waived her physician-patient privilege, pursuant to CPLR 4504[a], when, without asserting the privilege, she answered certain questions at a hearing conducted pursuant General Municipal Law § 50-h and when she voluntarily provided certain information to medical personnel.

Student note:  The privilege does not attach to information constituting mere facts and incidents of a plaintiff's medical history.

Case:  Knowles v. Saint Joseph's Med. Ctr., NY Slip Op 00968 (2d Dept. 2014).

Here is the decision.

Monday's issue: An auto accident, summary judgment, and comparative negligence.

The effect of affidavits of service.

Practice point:  Here, the affidavit of service indicating that the respondent was served pursuant to CPLR 308(2) by delivery of the papers to a person of suitable age and discretion was insufficient to establish, prima facie, that the respondent was validly served pursuant to that section. However, a second affidavit of service constituted prima facie evidence of proper service of the summons and complaint pursuant to CPLR 308(1), and of proper service of the notice required by Real Property Actions and Proceedings Law § 1303. The respondent's bare and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the proof of proper service set forth in the affidavit..

Student note:  Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the affidavit.

Case:  Deutsche Bank Natl. Trust Co. v. Quinones, NY Slip Op 00959 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Disclosure of privileged medical records.

Failure to negotiate in good faith and exemplary damages.

Practice point:  Although the Supreme Court had authority to impose sanctions if it determines, after a hearing, that the plaintiff failed to negotiate in good faith in a mandatory foreclosure settlement conference, it did not have authority to include such a provision in the judgment in the absence of any application for that relief.  In addition, the court's imposition of exemplary damages, and the effective use of those exemplary damages to award a reduction of the principal balance of the subject mortgage, was done without notice to the plaintiff that the court was contemplating such a sanction, and deprived the plaintiff of its right to due process.

Student note:  CPLR 3408 does not require the plaintiff to make the exact offer desired by the defendant, and the plaintiff's failure to make that offer cannot be construed as a lack of good faith.

 Case:  Bank of Am. v. Lucido, NY Slip Op 00956 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: The effect of affidavits of service.

Noncompliance with a court-ordered deadline.

Practice point:  Here, it was uncontroverted that defendant's motion was not timely under the schedule set by the preliminary conference order. The Appellate Division determined that it does not matter whether a motion for summary judgment has been made more than 120 days after the filing of the note of issue or after the expiration of a shorter time limit set by a court order or stipulation. Whatever the source of the deadline with which a party fails to comply, the lateness may not be excused without a showing of good cause within the meaning of CPLR 3212(a), a showing of something more than mere law office failure. Defendant's excuse that its counsel inadvertently overlook the ordered date is a perfunctory claim of law office failure, and the motion was denied.

Student note:  The Court of Appeals has repeatedly held that court-ordered time frames are requirements to be taken seriously by the parties. See, e.g., Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74 (2010).

Case: Quinones v. Joan & Sanford I. Weill Med. Coll., NY Slip Op 00882 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Failure to negotiate in good faith and exemplary damages.

Court holiday.

The courts are closed to mark Presidents' Day.

Tomorrow's issue: Noncompliance with a court-ordered deadline.

Service of a claim on the Attorney General.

Practice point:  Court of Claims Act § 11(a)(i) provides that a copy of the claim shall be served personally or by certified mail, return receipt requested, upon the attorney general. The requirements are jurisdictional and must be strictly construed. Here, the claim was improperly served upon the defendant by regular mail and so the court lacked jurisdiction over the defendant.

Student note: In addition, the Court of Claims properly declined to correct or disregard the defect in service pursuant to CPLR 2001. Even though the attorney general received the claim, service by regular mail was more than a mere technical infirmity as this method of service introduced a greater possibility of failed delivery.

Case:  Brown v. State of New York, NY Slip Op 00627 (2d Dept. 2014).

Here is the decision.

Tuesday's issue: Noncompliance with a court-ordered deadline.

The issue of standing in an action to foreclose a mortgage.

Practice point:   A plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.

Student note: Where, as here, standing is put into issue by a defendant, the plaintiff must prove its standing in order to be entitled to relief.

Case:  Aurora Loan Servs., LLC v. Taylor, NY Slip Op 00625 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Service of a claim on the Attorney General.

Court holiday.

The courts are closed to mark Lincoln's Birthday.

Tomorrow's issue:  The issue of standing in an action to foreclose a mortgage.

A landowner's liability.

Practice point:  Where a landowner has actual knowledge of a recurrent dangerous condition in a specific area, it may be charged with constructive notice of each specific recurrence of it.

Student note:  A landowner has a general duty to maintain its property in a reasonably safe condition in view of the circumstances, including the likelihood of injury to others, the seriousness of the possible injury, and the burden of avoiding the risk.

Case:  Agosto v. City of New Rochelle, NY Slip Op 00623 (2d Dept. 2014).

Here is the decision.

Thursday's issue: The issue of standing in an action to foreclose a mortgage.

A declaratory judgment claim involving a Delaware LLC.

Practice point:  The Appellate Division reversed the order denying defendant's motion to dismiss, or alternatively for summary judgment, as to the cause of action for a declaration that defendant is required to sell his LLC shares to plaintiffs.

The parties' rights as members of a Delaware LLC are defined by the operating agreement which does not indicate that plaintiffs could compel the sale of defendant's membership interests. Plaintiffs rely on a section of the agreement which allows them to compel the sale of the membership interest upon the termination of the employment of "an employee other than a manager." However, it is undisputed that defendant was a managerial employee at the time of his termination, and so, under the agreement's plain language, the section is inapplicable. Moreover, plaintiffs' reading would divest the phrase "other than a manager" of any effect, a result that is contrary to Delaware which favors the interpretation that gives effect to all terms of contract.

Student note:  Where, as here, the declaratory judgment claim is resolved on the merits, the proper course is to issue a declaration in defendant's favor, not a dismissal.

Case:  LCM Holdings GP, LLC v. Imbert, NY Slip Op 00595 (1st Dept. 2014).

Here is the decision. 

Tomorrow's issue: A landowner's liability.

A civilian's liability for false arrest and malicious prosecution.

Practice point:  A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution.

Student note:  In addition, where, as here, the plaintiff was indicted by the grand jury, there is a presumption of probable cause vis-a-vis the malicious prosecution cause of action.

Case: Johnson v. Follett Higher Educ. Group, Inc., NY Slip Op 00483 (2d Dept.2014).

Here is the decision.

Monday's issue: A declaratory judgment claim involving a Delaware LLC.

Deceptive business acts and practices.

Practice point:  A private action under General Business Law § 349 must be predicated on a deceptive act or practice that is consumer-oriented. Whether a representation or an omission, the test is whether the allegedly deceptive act or practice is likely to mislead a reasonable consumer acting reasonably under the circumstances.

Student note: In addition to showing that the conduct was consumer-oriented, a prima facie case requires a showing that the defendant is engaging in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof.

Case:  David v. #1 Mktg. Serv., Inc., NY Slip Op 00477 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A civilian's liability for false arrest and malicious prosecution.

A late notice of claim.

Practice point:  In affirming the denial of the petition for leave to file a late notice of claim, the Appellate Division found that petitioners failed to explain their delay in filing the notice, pursuant to General Municipal Law § 50-e[1][a]; [5]. While they claim that the injured petitioner's incapacity prevented him from obtaining counsel from the date of the incident, in June, until his surgery in September, they do not explain the two-month delay in filing the notice after they obtained counsel in October, or the delay until the next February in seeking leave to file an untimely notice.

In addition, petitioners failed to show that respondents acquired actual knowledge of the essential facts constituting their claim, pursuant to General Municipal Law § 50-e[5]. While, respondents' internal reports and records contained the exact details of the incident, there are no factual allegations in the contemporaneous written statements of the injured petitioner's coworkers or even in petitioner's own written statement that would constitute a claim of negligence on respondents' part.  So,petitioners cannot rely on  respondents records to rebut the inference of prejudice resulting from petitioners' eight-month delay in serving the notice.

Student note: The Appellate Division also found that petitioners' cause of action is without merit. They failed to allege facts that would establish that respondents had a special duty to the injured petitioner to protect him from an assault.

Case:  McGinness v. City of New York, NY Slip Op 00572 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Deceptive business acts and practices.

The statutory pleading requirement for fraud.

Practice point:  CPLR 3016(b) requires that where a cause of action is based upon misrepresentation, fraud, mistake, willful deceit, breach of trust, or undue influence, the circumstances constituting the wrong shall be stated in detail. This pleading requirement does not rise to the level of unassailable proof, and may be met when the facts are sufficient to permit a reasonable inference of the conduct alleged.

Student note: The elements of a claim sounding in fraud are a false representation of fact, made with knowledge of the falsity and in order to induce reliance, and on which there was justifiable reliance resulting in injury.

Case: Crescentini v. Slate Hill Biomass Energy, LLC, NY Slip Op 00475 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A late notice of claim.

A defendant-corporation's pro se answer.

Practice point:  The Appellate Division found that the Supreme Court erred in accepting an untimely, pro se answer from the defendant corporation, and in thereby denying that branch of the plaintiff's motion which was for leave to enter a default judgment on the complaint. The proffered answer was a nullity as a corporation must be represented by an attorney and cannot proceed pro se, pursuant to CPLR 321[a].

Student note:  The Appellate Division also found that, as the plaintiff's submissions on the motion established each of the claims prima facie, that branch of the motion which was for leave to enter a default judgment should have been granted.

Case:  Boente v. Peter C. Kurth Off. of Architecture & Planning, P.C., NY Slip Op 00473 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  The statutory pleading requirement for fraud.