A court's determination as to child support.

Practice point:  A court is not bound by a party's account of his or her own finances, and where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed.

Student note:  Courts are afforded considerable discretion in imputing income.

Case:  Elsayed v. Edrees, NY Slip Op 05356 (2d Dep't July 6, 2016)

Here is the decision.

Tomorrow's issue:  A failed motion to strike an answer.

General Business Law § 349, the statute of limitations, and estoppel.

Practice point:  New York courts apply CPLR 214(2)'s three-year period of limitations for statutory causes of action to General Business Law § 349 claims, and the statute runs from the time when the plaintiff was injured. A defendant is estopped from raising a statute of limitations defense to a statutory cause of action where the plaintiff has alleged both the tort that was the basis of the action and later acts of deception that prevented the plaintiff from bringing a timely lawsuit.

Student note:  A cause of action accrues, triggering the statute of limitations, when all of the factual circumstances necessary to establish a right of action have occurred, so that the plaintiff would be entitled to relief.

Case:  Kainer v. Christie's Inc., NY Slip Op 05454 (1st Dep't July 7, 2016)

Here is the decision.

Tomorrow's issue:  A court's determination as to child support.

A dismissed claim of malicious prosecution.

Practice point:  The Appellate Division affirmed dismissal, as the record does not support a finding that defendants initiated the criminal proceeding against plaintiff without probable cause and with malice. Instead, the record merely shows that they provided police with information and cooperated with authorities; there is no evidence that defendants affirmatively induced the authorities to act.

Student note: The grand jury indictment of plaintiff raises a rebuttable presumption of probable cause for the drug possession charge.

Case:  Patrick v. United Parcel Serv., Inc., NY Slip Op 05446 (1st Dep't July 7, 2016)

Here is the decision.

Tomorrow's issue:  General Business Law § 349, the statute of limitations, and estoppel.

Lack of capacity as a defense.

Practice point:  Absent a judicial declaration of incompetence, a person of unsound mind may sue or be sued in the same way as any other person.

Student note:  A motion to amend to add a defense will be denied if the proposed amendment is palpably insufficient as a matter of law.

Case:  Rivera v. New York City Tr. Auth., NY Slip Op 05451 (1st Dep't July 7, 2016)

Here is the decision.

Tomorrow's issue:  A dismissed claim of malicious prosecution.

An exclusionary clause in an insurance contract.

Practice point:  In order to be given effect, an exclusion from coverage must be specific and clear, and any ambiguity in the exclusionary clause must be construed most strongly against the insurer.

Student note:  As with any contract, an unambiguous policy provision must be accorded its plain and ordinary meaning, and the plain meaning of the policy's language may not be disregarded in order to find an ambiguity where none otherwise exists.

Case:  Cleary v. Automobile Ins. Co. of Hartford, Conn., NY Slip Op 05355 (2d Dep't July 6, 2016)

Here is the decision.

Tomorrow's issue:  Lack of capacity as a defense.

A bicyclist, a bus, and an illegally parked vehicle.

Practice point:  The Appellate Division affirmed denial of the motion to dismiss in this action where defendant argues that, although its truck was parked in a no-standing zone at the time of the accident involving plaintiff's bicycle and a bus, its truck was not a proximate cause of the accident. The Appellate Division found issues of fact as to how far the truck was protruding into the lane of travel, whether plaintiff swerved toward the bus in an effort to avoid the truck, and whether plaintiff was forced to jump from his bicycle in order to avoid being slammed into the truck as his bicycle was being dragged by the bus.

Student note:  Since a reasonable factfinder could conclude that the accident was a foreseeable consequence of defendant's illegal parking, summary judgment was properly denied.

Case:  Santana v. MTA Bus Co., NY Slip Op 05450 (1st Dep't July 7, 2016)

Here is the decision.

Monday's issue:  An exclusionary clause in an insurance contract.

A collision on a ski slope.

Practice point:  The Appellate Division affirmed the denial of defendant's motion for summary judgment dismissing the complaint in this action where plaintiff-snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour.

The Appellate Division found in the record triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner's slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented.  In addition, in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances.

Student note:  While there are inherent risks in the sports of skiing and snowboarding, participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk.

Case:  Horowitz v. Chen, NY Slip Op 05335 (1st Dep't July 5, 2016)

Here is the decision.

Tomorrow's issue:  A bicyclist and an illegally parked vehicle.

Attorney-client privilege as to in-house general counsel.

Practice point:  The Appellate Division reversed the motion court that had granted plaintiff's motion to compel defendants to produce certain documents that had been withheld on the basis of attorney-client privilege.  The primary issue on appeal was whether attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a firm client may successfully invoke attorney-client privilege to resist the client's demand for the disclosure of communications seeking or giving such advice.  The Appellate Division held that these communications are not subject to disclosure to the client under the fiduciary exception to the attorney-client privilege, as, for purposes of the in-firm consultation on the ethical issue, the attorneys seeking the general counsel's advice, as well as the firm itself, were the general counsel's clients. The Appellate Division expressly declined to adopt the current client exception, under which a former client is entitled to disclosure by a law firm of any in-firm communications relating to the client that took place while the firm was representing that client.

Student note:  New York has codified the attorney-client privilege at CPLR 4503, which provides, in pertinent part, as follows:

(a) 1. Confidential communication privileged. Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing.

Case:  Stock v. Schnader Harrison Segal & Lewis LLP, NY Slip Op 05247 (1st Dep't June 30, 2016)

Here is the decision.

Tomorrow's issue:  A collision on a ski slope.

A time-barred negligene claim.

Practice point:  The Appellate Division affirmed dismissal of the negligence claim, among others, as time-barred.  The claim, which alleges a failure to properly record certain mortgages, is governed by CPLR 214(4), a three-year statute of limitations. The mortgages at issue were recorded in 2007, and the claim was not filed until 2014.

Student note:  Accrual time is measured from the day the actionable injury occurred, even though the aggrieved party was then ignorant of the injury.

Case:  Yarbro v. Wells Fargo Bank, N.A., NY Slip Op 05236 (1st Dep't June 30, 2016)

Here is the decision.

Tomorrow's issue:  Attorney-client privilege as to in-house general counsel.

A fall in a City-owned garden.

Practice point:  The Appellate Division reversed the motion court and dismissed this action where plaintiff allegedly fell in a City-owned community garden when he tripped over the edge of a concrete slab bordering a patch of dirt and was lacerated by rebar or wires sticking out of the concrete. Defendant-non-profit organization provided funding and assistance for a renovation project in the garden that was completed three years before plaintiff's accident.

To the extent the non-profit could be held liable to plaintiff for creating an unreasonable risk of harm, it demonstrated through the its assistant director's testimony that it did not create the tripping hazard, but assisted in upgrading the deteriorated garden and clearing it of tripping hazards. In addition, the assistant director testified that he did not see any condition of wires or rebar sticking out of concrete in the garden during the renovation project, and plaintiff, who had been a member of the garden for nine years, could not say how long the condition existed before his accident.

In opposition, neither plaintiff nor the City presented any evidence.

Student note:  Speculation by plaintiff and the City that the non-profit may have been involved in construction in the area of plaintiff's fall, which may have caused the defective condition, is insufficient to raise an issue of fact,

Case:  Sewesky v. City of New York, NY Slip Op 05234 (1st Dep't June 30, 2016)

Here is the decision.

Tomorrow's issue:  A time-barred negligence claim.

The doctrine of collateral estoppel

Practice point:  The doctrine, which is a narrower kind of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, regardless of whether the courts or causes of action are the same.  Collateral estoppel is implicted when four conditions are fulfilled: (1) the issues in both proceedings are identical; (2) the issue in the prior proceeding was actually litigated and decided; (3) there was a full and fair opportunity to litigate in the prior proceeding; and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits.  The party nvoking collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate.

Student note:  Where a federal court declines to exercise jurisdiction over a plaintiff's state law claims, collateral estoppel operates as a bar, provided that the federal court decided issues identical to those raised by the plaintiff's state claims.

Case:  Clifford v. County of Rockland, NY Slip Op 05112 (2d Dep't June 29, 2016)

Here is the decision.

Monday's issue: A fall in a City-owned garden.

CPLR 3216 and restoring a case to the calendar.

Practice point:  In this action to recover damages for personal injuries, the Appellate Division reversed the denial of plaintiff's motion and granted his motion to vacate the dismissal of the action pursuant to CPLR 3216, to restore the action to the active calendar, and to extend the time to file a note of issue.

Plaintiff's counsel affirmed that he never received a copy of the Supreme Court's order which set the deadline for filing the note of issue, and plaintiff promptly moved for relief shortly after learning that the case had been marked "disposed." Further, the plaintiff demonstrated a potentially meritorious cause of action through the submission of his deposition transcript. Under these circumstances, the Appellate Division found that the Supreme Court improvidently exercised its discretion in declining to excuse the plaintiff's failure to meet the deadline for filing a note of issue.

Student note:  CPLR 3216 is extremely forgiving, in that it never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed. While the Supreme Court is prohibited from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a potentially meritorious cause of action, pursuant to CPLR 3216[e], a dual showing of justifiable excuse and meritorious cause of action is not strictly necessary for a plaintiff to avoid dismissal of the action.

Case:  Bell v. United Parcel Serv., Inc., NY Slip Op 05110 (2d Dep't June 29, 2016)

Here is the decision.

Tomorrow's issue:  The doctrine of collateral estoppel.

The homeowner's exemption under the Labor Law.

Practice point:  While the Labor Law generally imposes liability for worker safety on property owners and contractors, it exempts from liability the owners of one and two-family dwellings who contract for but do not direct or control the work.  The exemption does not extend to owners who use their one- or two-family houses purely for commercial purposes.  Renovating a residence for resale or rental qualifies as work being performed for a commercial purpose.

Student note: Where a one- or two-family property serves both residential and commercial purposes, a determination as to whether the exemption applies in a particular case turns on the nature of the site and the purpose of the work being performed, and must be based on the owner's intentions at the time of the injury.

Case:  Batzin v. Ferrone, NY Slip Op 05108 (2d Dep't June 29,2016)

Here is the decision.

Tomorrow's issue:  CPLR 3216 and restoring a case to the calendar.

An auto accident claim dismissed.

Practice point:  The Appellate Division affirmed the granting of defendants' cross-motion for summary judgment and dismissal, finding that defendants established their entitlement to judgment as a matter of law. Defendants submitted defendant-driver's testimony that, with plaintiff as his passenger, he was crossing the intersection at a moderate speed with the green light in his favor, when co-defendant, who was traveling in the opposite direction, suddenly turned across the intersection in front of him while attempting to make a left turn.

In opposition, plaintiff failed to raise a triable issue of fact. She argued to the motion court that it was undisputed that defendant-driver saw co-defendant's vehicle prior to the collision, yet she did not come forward with evidence indicating that defendant-driver had a reasonable opportunity to avoid the collision. Plaintiff's argument that defendant-driver failed to reduce his speed when passing through the intersection was conclusory and unsupported, and at his deposition, co-defendant conceded that he simply did not see defendant-driver's car before attempting a left turn, and that his view of oncoming traffic was obscured.

Student note:  The unsworn police accident report was hearsay evidence, and insufficient to defeat the cross-motion.

Case:  Revels v. Schoeps, NY Slip Op 05229 (1st Dep't June 30, 2016)

Here is the decision.

Tomorrow's issue:  The homeowner's exemption from liability under the Labor Law.

An LLC's operating agreement and the LLC statute.

Practice point:  The Appellate Division affirmed denial of defendants' motion for summary judgment dismissing the cause of action for a declaration that plaintiff has been and continues to be a co-managing member of the LLC.

Section 7.7 of the company's operating agreement provides that in a case of fraud, misfeasance or breach of the managing member's standard of care, "the Managing Member may be removed by a vote of all of the Members." Since plaintiff, who holds a 50% member interest in the company, was not included in the vote to remove her as co-managing member, her removal did not comply with this section.

Student note:  As the operating agreement is not silent on voting issues, Limited Liability Company Law § 402(f) is not implicated and does not avail defendants.

Case:  Gibber v. Colton, NY Slip Op 05227 (1st Dep't June 30, 2016)

Tomorrow's issue: An auto accident claim dismissed.

Contracts and tort liability in favor of a third-party.

Practice point:  A contractual obligation, standing alone, will not give rise to tort liability in favor of a third party, with three exceptions:  (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely.

Student note:  As part of its prima facie showing, a contracting defendant is only required to negate the applicability of the three exceptions that were expressly pleaded by the plaintiff or expressly set forth in the plaintiff's bill of particulars.

Case:  Barone v. Nickerson, NY Slip Op 05107 (2d Dep't June 29, 2016)

Here is the decision.

Monday's issue:  An LLC's operating agreement and the LLC statute.

An ineffective expert affirmation in a medical malpractice action.

Practice point:  The Appellate Division affirmed dismissal of the complaint in this action where defendant made a prima facie showing that it did not deviate from the standard of care in treating plaintiff's decedent. In support of his contention that defendants' failure to treat the decedent with the drug Eculizumab was a proximate cause of her death, plaintiff submitted an expert affirmation that fell short of establishing that Eculizumab was the standard of care for treatment of atypical hemolytic uremic syndrome (aHUS). The expert's strongest statement was that Eculizumab was "a promising new therapy for the treatment of [aHUS] [that] should have been known to her physicians and used by them."

Student note:  While the Supreme Court purportedly denied plaintiff's motion for reargument, since it addressed the merits of the motion and adhered to the original determination, the order is appealable.

Case:  Castilo v. Mt. Sinai Hosp., NY Slip Op 05074 (1st Dep't June 28, 2016)

Here is the decision.

Tomorrow's issue:  Contracts and tort liability in favor of a third-party.

CPLR 203(d) and equitable recoupment on a counterclaim.

Practice point:  Under CPLR 203(d), claims and defenses that arise out of the same transaction as a claim asserted in the complaint are not barred by the statute of limitations, even though an independent action by the defendant might have been time-barred at the time the action was commenced. This provision allows a defendant to assert an otherwise untimely claim which arose out of the same transactions alleged in the complaint, but only as a shield for recoupment purposes, and does not permit the defendant to obtain affirmative relief. Here the Appellate Division found that the defendant's counterclaim alleging legal malpractice relates to the plaintiff's performance under the same retainer agreement pursuant to which the plaintiff would recover, and therefore the counterclaim falls within the permissive ambit of CPLR 203(d).  However, the counterclaim is permitted only to the extent that it seeks to offset any award of legal fees to the plaintiff and not to the extent that it seeks affirmative relief.

Student note:  The Appellate Division affirmed dismissal of the counterclaim alleging breach of contract, as it is duplicative of the counterclaim alleging legal malpractice. This counterclaim is based on the same factual allegations that underlie the malpractice counterclaim and does not allege distinct damages.

Case:  Balanoff v. Doscher, NY Slip Op 04896 (2d Dep't June 22, 2016)

Here is the decision.

Tomorrow's issue:  An ineffective expert affirmation in a medical malpractice action.

An equitable estoppel defense.

Practice point:  The Appellate Division affirmed dismissal of the defamation claim as time-barred.  Plaintiff failed to establish that the doctrine of equitable estoppel bars defendants from asserting a statute of limitations defense to his claims. He contends that defendants' fraud and misrepresentations prevented him from discovering defendants' identity, not that he was lulled into inaction by defendants in order to allow the statute of limitations to lapse. Neither does plaintiff allege a fiduciary relationship between himself and defendants.

Student note:  The Appellate Division noted that, in any event, plaintiff's allegations that he acted diligently in bringing this action are refuted by the two open letters he published. The letters demonstrate that plaintiff had sufficient knowledge to bring an action for more than a year before he commenced this action.

Case:  Bacon v. Nygard, NY Slip Op 05028 (1st Dep't June 23, 2016)

Here is the decision.

Tomorrow's issue:  CPLR 203(d) and equitable recoupment on a counterclaim.

July 4th Weekend

A fall on a wet staircase.

Practice point:  The Appellate Division affirmed denial of defendant's summary judgment motion in this action where plaintiff alleges that, as he was returning to a show at defendant-theater after having gone outside during intermission, he slipped on a wet staircase, causing him to sustain injuries. The evidence submitted by defendant was insufficient to establish prima facie that it lacked constructive notice of the alleged water hazard. Although defendant described its general cleaning routines at the theater, it failed to offer specific evidence as to its activities on the day of the accident, including evidence indicating the last time the staircase was inspected or maintained before plaintiff fell.

Student note:  The Appellate Division noted that, in any event, in opposition, plaintiff raised an issue of fact as to notice of the alleged wet condition and whether defendant had adequate time to remedy the condition, based on his testimony that he told an usher prior to going outside of the theater at intermission that the area was wet, and when he returned 15 minutes later, he slipped and fell in the same area.

Case:  Sada v. August Wilson Theater, NY Slip Op 05024 (1st Dep't June 23, 2016)

Here is the decision.

Tuesday's issue: An equitable estoppel defense.