A dismissed retaliation claim.

Practice point:  The Appellate Division affirmed the dismissal of plaintiff's retaliation claim under federal and state civil rights law and under the New York City Human Rights Law, finding that the amended complaint failed to provide a basis for a reasonable jury to conclude that the job offer that was extended to plaintiff was rescinded because of his inquiry to the Equal Employment Opportunity Commission. There is no dispute that the job offer was re-confirmed, even after defendant City employees were aware of the inquiry.

There also is no dispute that plaintiff failed to complete the routine paperwork stating that such a failure might result in his not being appointed to the position that was offered. Plaintiff failed to allege facts sufficient to demonstrate a causal connection between the adverse employment action and his EEOC inquiry, or that the stated reason for rescinding the job offer was a pretext for impermissible retaliation.

Student note:  The Appellate Division noted that, while the order appealed from did not expressly address plaintiff's retaliation claim, it unambiguously granted defendants' motion to dismiss in its entirety.  CPLR 2219(a) provides the court with broad leeway as to the form of an order, and the parties addressed the claim in their motion papers.

Case:  Ruderman v. City of New York, NY Slip Op 06148 (1st Dep't September 27, 2016)

Here is the decision.

Monday's issue:  Summary judgment on a legal malpractice clai

Failure to state a cause of action for fraudulent inducement and fraud.

Practice point:  A complaint fails to state a cause of action for fraudulent inducement and fraud to the extent that it relies on representations that are non-actionable statements of either intent or belief.

Case:  GSO Coastline Credit Partners LP v. Global A&T Electronics Ltd., NY Slip Op 06143 (1st Dep't September 27, 2016)

Here is the decision.

Tomorrow's issue:  A dismissed retaliation claim.

An action on an account stated.

Practice point:  An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and the balance owing. The agreement is implied where a defendant retains bills without objection within a reasonable period of time, or makes partial payment on the account.

Case:  Clean Earth of N. Jersey, Inc. v. Northcoast Maintenance Corp., NY Slip 06056 (2d Dep't September 21, 2016)

Here is the decision.

Tomorrow's issue:  Failure to state a cause of action for fraudulent inducement and fraud.

Claims sounding in punitive damages and attorneys' fees.

Practice point:  Whilea plaintiff may pray for relief in the form of punitive damages, the claim may not be pled as a separate cause of action. Similarly, while a plaintiff, if successful, may be entitled to attorneys' fees under the City's Human Rights Law, a claim for attorneys' fees may not be maintained as a separate cause of action.

Case:  La Porta v. Alacra, Inc., NY Slip Op 06113 (1st Dep't September 22, 2016)

Here is the decision.

Tomorrow's issue: An action on an account stated.

Judicial estoppel in a matrimonial action.

Practice point:  Sometimes called the doctrine of inconsistent positions, judidical estoppel precludes a party who assumed a certain position in a prior legal proceeding and who secured a favorable judgment from assuming a contrary position in another action simply because that party's interests have changed.

The doctrine is applicable in matrimonial actions, but in this case the Appellate Division held that the defendant was not judicially estopped from seeking an award of maintenance, as the parties were still married at the time the bankruptcy petitions were filed, and the defendant was not required to list any possible future rights to maintenance payments in the bankruptcy petitions, which were filed years before the judgment of divorce was issued.

Case:  Canzona v. Canzona, NY Slip Op 06055 (2d Dep't September 21, 2016)

Here is the decision.

Tomorrow's issue:  Claims sounding in punitive damages and attorneys' fees.

Labor Law liability for a fall from a scaffold or ladder.

Practice point:  Liability under § 240(1) depends upon whether the injury resulted from the failure to use, or the inadequacy of, a device within the purview of the statute. So, there can be no liability under § 240(1) when there is no violation and the worker's actions are the sole proximate cause of the accident.

Case:  Albino v. 221-223 W. 82 Owners Corp., NY Slip Op 05953 (1st Dep't September 8, 2016)

Here is the decision.

Monday's issue:  Judicial estoppel in a matrimonial action.

A defendant files for summary judgment before plaintiff commences discovery.

Practice point:  Plaintiff's failure to commence discovery during the ten months between defendant's answer and defendant's motion to dismiss, without more, does not warrant granting the motion, pursuant to CPLR 3212(f), where the existing record does not negate plaintiff's theory of liability.

Case:  Gomez v. Kozot Realty Corp., NY Slip Op 06046 (1st Dep't September 15, 2016)

Tomorrow's issue: Labor Law liability for a fall from a scaffold or ladder.

Denial of defendant's summary judgment motion.

Practice point:  The Appellate Division reversed, and denied the motion to dismiss.  In support of their motion, defendants submitted, among other things, transcripts of the deposition testimony of both  plaintiff and defendant-driver. In those transcripts, the parties gave differing accounts of how the accident occurred, and there were issues of fact and credibility that could not be resolved on the motion. Given these issues, defendants failed to establish their prima facie entitlement to judgment as a matter of law.

Student note:  Since defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, the motion is denied without consideration of the sufficiency of plaintiff's opposition papers.

Case:  Chimbo v. Bolivar, NY Slip Op 05969 (2d Dep't September 14, 2016)

Here is the decision.

Tomorrow's issue:  A defendant files for summary judgment before plaintiff commences discovery.

A claim of retaliation under the State and City Human Rights Laws.

Practice Point:  The Appellate Division found that plaintiff stated the cause of action where he alleges that he was passed over for promotion because of his accent. The Appellate Division noted that plaintiff's accent is inextricably bound to his national origin. In addition, plaintiff alleges that defendants subjected him to excessive scrutiny as a result of his persistent applications for promotion, and that this led directly to his suspension and termination.

Case:  St. Jean Jeudy v. City of New York, NY Slip Op 06045 (1st Dep't September 15, 2016)

Here is the decision.

Tomorrow's issue:  Denial of defendant's summary judgment motion.

Liability for negligent renovation of a party wall.

Practice point:  A property owner may be liable where, during renovation, the party wall is altered to the detriment of the adjoining property owner.  Where it is alleged that the damage was to the structural aspect of the wall, the property owner could be liable for weakening the wall, regardless of any care in performing the work. In addition, the property owner causing the alterations may be liable for trespass where the wall is penetrated.

Case:  Ehrenberg v. Regier, NY Slip Op 05938 (1st Dep't September 1, 2016)

Here is the decision.

Tomorrow's issue:  A claim of retaliation under the State and City Human Rights Laws.

The doctrine of laches.

Practice point:  Laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party.  Prejudice may be demonstrated by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay.

Case:  Diecidue v. Russo, NY Slip Op 05907 (2d Dep't August 31, 2016)

Here is the decision.

Monday's issue:  Liability for negligent renovation of a party wall.

A late notice of claim is deemed timely served.

Practice point:  The Appellate Division determined that the Supreme Court providently exercised its discretion in granting the petition and deeming the late notice of claim to be timely served, pursuant to General Municipal Law § 50-e[5]. The petitioner demonstrated a reasonable excuse for the delay in serving a notice of claim, namely, her physical incapacity and her attorney's investigation into the claim.  In addition, the petitioner adequately demonstrated that the defendant would not be substantially prejudiced by the delay.

Case:  Matter of Pazienza v. Westchester County Health Care Corp., NY Slip Op 05863 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  The doctrine of laches.

Judicial review under the New York Human Rights Law.

Practice point:  Under the statute, the scope of judicial review is extremely narrow and is confined to the consideration of whether the New York State Division of Human Rights' determination is supported by substantial evidence in the record.  Substantial evidence is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.  While it is more than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence, or evidence beyond a reasonable doubt.

Student note:  A court may not weigh the evidence or reject agency's determination where the evidence is conflicting and there is room for choice.

Case:  Matter of Briggs v. New York State Div. of Human Rights, NY Slip Op 05860 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  A late notice of claim is deemed timely served.

Legal malpractice.

Practice point:  To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. In order to establish causation, a plaintiff must show that, but for the lawyer's negligence, he or she would have prevailed in the underlying action or would not have incurred any damages.

Student note:  In order to prevail on a summary judgment motion, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements.

Case:   Silverman v. Potruch & Daab, LLC, NY Slip Op 05857 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Judicial review under the New York Human Rights Law.

A 306-b motion to extend the time to serve.

Practice point:  The Appellate Division affirmed the granting of that branch of plaintiffs' cross motion, pursuant to CPLR 306-b and in the interest of justice, to extend the time to serve defendant. While the action was timely commenced, the statute of limitations had run when plaintiffs cross-moved for relief.  Plaintiffs re-served defendant within a reasonable time after learning that defendant was challenging service as defective, and defendant had actual notice of the action within 120 days of its commencement.

Case:  Rivera v. Rodriguez, NY Slip Op 05855 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Legal malpractice.

Liability for an independent contractor's negligent acts.

Practice point:  A party who retains an independent contractor, as distinguished from an employee or servant, is not liable for the independent contractor's negligent acts.  There are exceptions to this general rule, one of which is applicable where the party is under a duty to keep the premises safe. In that instance, as the legal duty is non-delegable, the party is vicariously liable for the the independent contractor's fault. 

Case:  Pesante v. Vertical Indus. Dev. Corp., NY Slip Op 05854 (2d Dep't August 24, 2016)

Here is the decision.

Monday's issue:  A 306-b motion to extend the time to serve.

A defendant-movant's burden in a negligence action.

Practice point:  A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the accident.

Student note:  There can be more than one proximate cause of an accident, and, generally, it is for the trier of fact to determine the issue of proximate cause.

Case:  Hurst v. Belomme, NY Slip Op 05849 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Liability for an independent contractor's negligent acts.

Reformation of a contract.

Practice point:  A party seeking reformation by reason of mistake must establish, with clear and convincing evidence, that the contract was executed under mutual mistake or a unilateral mistake induced by the other party's fraudulent misrepresentation. In a case of mutual mistake, the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement.

Student note:  Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but to restate the intended terms of an agreement when the writing that memorializes that agreement is at odds with the parties' intent.

Case:  Gunther v. Vilceus, NY Slip Op 05847 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  A defendant-movant's burden in a negligence action.

Establishing standing in a mortgage foreclosure action.

Practice point:  A plaintiff establishes its standing by demonstrating that, when the action is commenced, it is either the holder or assignee of the underlying note.  Either a written assignment 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.

Student note:  Where a defendant raises the issue of standing, a plaintiff must prove its standing in order to be entitled to relief.

Case:  Deutsche Bank Natl. Trust Co. v. Cunningham, NY Slip Op 05845 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Reformation of a contract.

Court holiday.

An alleged breach of a construction contract.

Practice point:  A construction contract is breached, and the resulting cause of action accrues, upon substantial completion of the work, even if some work is completed at a later date.

Case:  W&W Steel, LLC v. Port Auth. of N.Y. & N.J., NY Slip Op 05900 (1st Dep't August 25, 2016)

Here is the decision.

Tuesday's issue:  Establishing standing in a mortgage foreclosure action.

Setting aside a foreclosure sale.

Practice point:   In the exercise of its equitable powers, a court may aside the sale where there is evidence of fraud, collusion, mistake, or misconduct that casts suspicion on the fairness of the sale.  Evidence of a unilateral mistake at the sale, without more, is not a basis to invalidate the sale if it was otherwise lawfully conducted.

Student note:  RPAPL 231(6), recites, in pertinent part, that a court, within one year after a foreclosure sale, "may set the sale aside for failure to comply with the provisions of this section as to the notice, time or manner of such sale if a substantial right of a party was prejudiced by the defect."

Case:  Clinton Hill Holding 1, LLC v. Kathy & Tania, Inc., NY Slip Op 05844 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  An alleged breach of a construction contract.