A vehicle accident and a negligence claim.

The Appellate Division reversed the motion court and reinstated the complaint in this action where the defendant moved for summary judgment, contending that the plaintiff's violation of Vehicle and Traffic Law § 1141 was the sole proximate cause of the accident. In support of the motion, the defendant submitted the parties' deposition testimony. The defendant attested that she never saw the front of the plaintiff's vehicle, and that when she first saw the plaintiff's vehicle, which was "moving like a snail," she saw the middle part of the vehicle directly ahead of her. Viewing the evidence in the light most favorable to the non-movant plaintiff, the defendant failed to establish, prima facie, her freedom from comparative fault and that the plaintiff's alleged violation of the Vehicle and Traffic Law was the sole proximate cause of the accident.

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.

Case:  Aponte v. Vani, NY Slip Op 08252 (2d Dep't November 22, 2017)

Here is the decision.

A dismissed breach of contract claim.

The Appellate Division affirmed dismissal because defendant cannot establish the elements of either breach or damages. Defendant does not allege that the contract required plaintiff to employ any particular security measures, so plaintiff was required only to exercise precautions consistent with industry standards. Plaintiff submitted an affidavit from an experienced industry professional, who opined that the measures it took, namely, keeping the molds in a locked storage room supervised by an on-site employee, were "standard in the industry." The affidavit submitted by defendant in opposition did not set forth any different standard, and, therefore, failed to raise an issue of fact.

Regarding damages, defendant's representative admitted that he was "not aware of any particular instances of sales of jewelry pieces manufactured from the counterfeit models."

Practice point:  Defendant's theory that the jewelry styles corresponding to the counterfeited models failed to meet projected sales is unduly speculative.

Case:  Apogee Handcraft, Inc. v. Verragio, Ltd., NY Slip Op 08178 (1st Dep't November 21, 2017)

Here is the decision. 

Promissory notes and contract law.

Practice point:   Where there is a valid contract, a plaintiff cannot recover in quasi contract for events arising out of the same subject matter.

Student note:  A promissory note is enforceable under the traditional principles of contract law.

Case:  Amrusi v. Nwaukoni, NY Slip Op 07970 (2d Dep't November 16, 2017)

Here is the decision.

A Labor Law claim for work performed out-of-State.

Labor Law, Article 6, which contains the unlawful deductions, notice, and record keeping provisions which plaintiffs claim were violated, does not indicate that the provisions were intended to apply when the work in question is performed outside the state. Article 19, which contains the minimum wage, overtime, and spread of hours provisions identified in the complaint, includes a "Statement of Public Policy," which states, in relevant part: "There are persons employed in some occupations in the state of New York at wages insufficient to provide adequate maintenance for themselves and their families.... Employment of persons at these insufficient rates of pay threatens the health and well-being of the people of this state and injures the overall economy."

As these statutes do not expressly apply on an extraterritorial basis, plaintiffs' claims under these provisions, based on labor performed outside New York, do not state a cause of action under Article 6 or Article 19 of the New York Labor Law.

Practice point:  Under New York Law, no legislation is presumed to be intended to operate outside the territorial jurisdiction of the state enacting it, unless expressly stated otherwise.

Case:  Rodriguez v. KGA Inc., NY Slip Op 07948 (1st Dep't November 14, 2017)

Here is the decision.

Strict products liability.

Practice point: In order to establish a prima facie case based on design defects, the plaintiff must show that the manufacturer or seller breached its duty to market safe products by marketing a product designed so that it was not reasonably safe, and that the defective design was a substantial factor in causing plaintiff's injury. In order to determine whether a product was designed so that it was not reasonably safe, the risks inherent in the product must be balanced against the product's utility and cost. A court will consider factors such as the utility of the product to the public and to the individual user; the likelihood that it will cause injury; the availability of a safer design; the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; the ability of the plaintiff to have avoided injury by careful use of the product; the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and the manufacturer's ability to spread any cost related to improving the safety of the design. With regard to the misuse of a product, it may be determined that even with adequate warnings, a product may be so dangerous, and its misuse may be so foreseeable, that the utility of the product does not outweigh the risk inherent in marketing it.

Case:  M.H. v. Bed Bath & Beyond Inc., NY Slip Op 07790 (1st Dep't November 9, 2017)

Here is the decision.

Court holiday.

A dismissed legal malpractice claim.

In this action commenced by plaintiffs against defendants based on defendants' representation of plaintiffs in an underlying federal court action, dismissal of the legal malpractice claim was affirmed since the claim rested on retrospective complaints about the outcome of defendants' strategic choices and tactics, without any facts cited to support a claim that the choices were unreasonable. The breach of contract and breach of fiduciary duty claims were reinstated, as they are based on billing issues and are not duplicative of the claims regarding the alleged mishandling of the trial.

Practice point:  The firm's failure to anticipate the trial court's evidentiary rulings regarding the expert report does not establish negligence.

Case:  Brenner v. Reiss Eisenpress, LLP, NY Slip Op 07781 (1st Dep't November 9, 2017)

Here is the decision.

Doctrine of primary assumption of risk.

Practice point:  Under the doctrine, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from participation.  By freely assuming a known risk, a plaintiff negates any duty on the part of the defendant to safeguard the plaintiff from the risk.  If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty. However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

Case:  Hanson v. Sewanhaka Cent. High Sch. Dist., NY Slip Op 07711 (2d Dep't November 8, 2017)

Here is the decision.

A motion to set aside a verdict.

Practice point:  Pursuant to CPLR 4404(a), a court may set aside a verdict and direct that judgment be entered in favor of a party entitled to judgment as a matter of law, or it may order a new trial where the verdict is contrary to the weight of the evidence or in the interest of justice.  A motion to set aside a verdict in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise. In considering the motion, the trial judge must decide whether substantial justice has been done and whether it is likely that the verdict has been affected. In addition, the judge must look to common sense, experience, and a sense of fairness rather than to precedents in arriving at a decision.

Case:  Duran v. Temple Beth Sholom, Inc., NY Slip Op 07708 (2d Dep't November 8, 2017)

Here is the decision.

Vacating a judgment resulting from fraud.

Practice point:  A party who has lost an action as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action against the party who adduced the false evidence. Instead, the plaintiff's sole remedy is a motion to vacate the judgment.  In an exception to the rule, a party may commence a separate action where the alleged perjury or fraud in the underlying action was merely a means to the accomplishment of a larger fraudulent scheme which was greater in scope than the issues determined in the prior proceeding.

Case:  DeMartino v. Lomonaco, NY Slip Op 07706 (2d Dep't November 8, 2017)

Here is the decision.

A dismissed quantum meruit claim.

The Appellate Division affirmed dismissal, finding no triable issue of fact as to whether plaintiff could have expected compensation from defendants for its services, as the brokerage agreement states otherwise.

Practice point:  Plaintiff presented no evidence of any other express or implied agreement between the parties to show that plaintiff had an expectation of compensation by defendants for her services.

Case:  SPRE Realty, Ltd. v. Dienst, NY Slip Op 07775 (1st Dep't November 9, 2017)

Here is the decision.

Emergeny operations, auto accidents, and statutory privilege.

The Appellate Division affirmed defendants' motion for summary judgment, finding that defendant police officer was operating a police vehicle while performing an emergency operation and did not recklessly disregard the safety of others before the accident happened.

Practice point:  The fact that defendant was mistaken in believing that plaintiff was stopping her vehicle when he passed through the red light does not make his conduct reckless. Defendant testified that, as he approached the intersection, he reduced his speed and looked left and right, and that he was traveling approximately 10 miles above the speed limit when the accident occurred.  Defendant tried to avoid colliding with plaintiff by braking hard and turning the steering wheel to the right upon realizing that plaintiff's vehicle had entered the intersection.

Student note:  The question of whether the police vehicle's lights and siren were activated is immaterial because defendant was not required to activate either of these devices in order to be entitled to the statutory privilege of driving through the red light.

Case:  Lewis v. City of New York, NY Slip Op 07785 (1st Dep't November 9, 2017)

Here is the decision.

CPLR 4401

Practice point: The granting of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party.  In considering the motion, the evidence must be viewed in the light most favorable to the nonmoving party, and the court must afford the nonmoving party every inference which may properly be drawn from the facts presented.

Case:  Canale v. L & M Assoc. of N.Y., Inc., NY Slip Op 07701 (2d Dep't November 8,2017)

Here is the decision.

Statute of limitations as a bar to a malpractice claim.

Practice point:  In seeking to assert the statute of limitations, a moving defendant must demonstrate, prima facie, that the time within which the plaintiff could commence the cause of action has expired. If the movant satisfies its burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable. The continuous representation doctrine may toll the statute.  A prerequisite for the application of the doctrine is that the relationship be continuous with respect to the matter in which the malpractice is alleged.  A general professional relationship involving only routine contact is insufficient.  In addition, the doctrine applies only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.

Case:  Collins Bros. Moving Corp. v. Pierleoni, NY Slip Op 07586 (2d Dep't November 1, 2017)

Here is the decision.

Court holiday.

Accountants as fiduciaries.

Practice point:  Accountants are not fiduciaries as to their clients except where the accountants are directly involved in managing the client's investments.

Case:  Herrmann v.  CohnReznick LLP, NY Slip Op 07688 (1st Dep't November 2, 2017)

Here is the decision. 

Past consideration.

Practice point:  Past consideration is no consideration and cannot support an agreement because the detriment did not induce the promise.  Since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise.

There is an exception where the past consideration is explicitly recited in a writing. To qualify for the exception, the description of the consideration must not be vague or imprecise, and extrinsic evidence may not be used to assist in understanding the consideration.

Student note:  General Obligations Law (GOL) § 5-1105 states,  "A promise in writing and signed by the promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed."

Case:  Korff v. Corbett, NY Slip Op 07677 (1st Dep't November 2, 2017)

Here is the decision.

Court holiday.

Entry of judgment.

Practice point:  Pursuant to CPLR 3215(c), if a plaintiff does not enter the judgment within one year after the default, the court will dismiss the complaint as abandoned. While the statutory language is not discretionary, plaintiff's failure may be excused on a showing of reasonable excuse and a potentially meritorious claim.

Student note:  The defendant may waive the right to dismissal by serving an answer or taking any other step that might be viewed as a formal or informal appearance.

Case:  Bank of Am., N.A. v. Rice, NY Slip Op 07581 (2d Dep't November 1, 2017)

Here is the decision.

General Business Law § 349 - Deceptive Acts and Practices Unlawful.

The Appellate Division reversed, and dismissed the claim of a statutory violation, finding that this was a private contract dispute unique to the parties.  Even if defendant engaged in consumer-oriented conduct by posting statements on its website, those statements were not likely to mislead a reasonable consumer.  In addition, if the statements were deceptive, they did not cause plaintiff's injury. Plaintiff's alleged injury was caused by defendant's specific acts and omissions, such as failing to provide constructible drawings, re-designing the apartment's windows and doors without authorization, and failing to coordinate the project.

Case:  Loeb v. Architecture Work, P.C., NY Slip Op 07551 (1st Dep't October 31, 2017)

Here is the decision.

The element of cause in a slip-and-fall action.

Plaintiff allegedly was injured when she slipped and fell in the defendant-restaurant. Plaintiff could not identify the cause of her fall, but stated, at her deposition, that it "could have been grease from the kitchen." The Appellate Division affirmed dismissal.

Practice point:  In a slip-and-fall case, a plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Case:  Cross v. Friendship Rest. Group, LLC, NY Slip Op 07428 (2d Dep't October 25, 2017)

Here is the decision.

An apartment fire.

Practice point: Defendant established entitlement to judgment as a matter of law in this wrongful death action arising from a fire that occurred in an apartment occupied by plaintiff's decedent, and owned and maintained by defendant. Defendant submitted evidence establishing that there was an operable smoke detector in decedent's apartment three months prior to the fire, and that it had not received any complaints about the smoke detector.  In opposition, plaintiff failed to raise a fact question as to whether the smoke detector was inoperable at the time of the fire, or whether defendant had actual or constructive notice that the detector was inoperable.

Case:  Keene v. New York City Housing Authority, NY Slip Op 07536 (1st Dep't October 26, 2017)

Here is the decision.