Forum selection clauses and improper venue.

Practice point: A forum selection clause may constitute documentary evidence sufficient to provide a proper basis for dismissal of a complaint pursuant to CPLR 3211(a)(1), such as where the forum selection clause provides that any dispute arising under the relevant agreement must be litigated in the courts of a state other than New York, in federal court, or in the courts of a country other than the United States.

Student note: Commencing an action in the proper court, but in an improper county, is not a jurisdictional defect requiring dismissal of the action.

Case: Lowenbraun v. McKeon, NY Slip Op 06016 (2d Dept. 2012).

Here is the decision.

Tuesday’s issue: Consumer protection from bad actors.

A court's oversight of discovery.

Practice point: In the exercise of its broad discretion, the court may strike pleadings or parts of pleadings as a sanction against a party who refuses to obey an order for disclosure or willfully fails to disclose information which the court finds should have been disclosed.

Student note: The drastic remedy of striking a pleading is inappropriate, however, absent a clear showing that the failure to comply with discovery obligations was willful and contumacious.

Case: Liang v. Yi Jing Tan, NY Slip Op 06015 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Forum selection clauses and improper venue.

Setting aside a jury verdict.

Practice point: For a reviewing court to determine that a jury's verdict is not supported by legally sufficient evidence, it must conclude that there is no valid line of reasoning and permissible inferences by which the jury could have rationally reached its verdict on the basis of the evidence presented at trial. In addition, a jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence.

Student note: Whether the verdict should be set aside does not involve a question of law, but rather requires a discretionary balancing of many factors. It is for the jury to make determinations as to the credibility of the witnesses, and great deference is accorded to the jury, which had the opportunity to see and hear the witnesses.

Case: Geary v. Church of St. Thomas Aquinas, NY Slip Op 06011 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: A court’s oversight of discovery.

Duty to provide a safe workplace.

Practice point: Owners and general contractors, and their agents, have a common-law duty to provide employees with a safe place to work. Labor Law § 200 merely codified that duty.

Student note: The common-law duty to provide employees with a safe place to work does not extend  to hazards that are part of, or inherent in, the very work the employee is to perform.

Case: Annicaro v. Corporate Suites, Inc., NY Slip Op 05899 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Setting aside a jury verdict.

Piercing the corporate veil.

Practice point: In order to state a viable claim against a shareholder, in an individual capacity, for actions purportedly taken on behalf of the corporation, a plaintiff must allege facts that, if proved, indicate that the shareholder exercised complete domination and control over the corporation and abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice.

Student note: Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate form include the failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and the personal use of corporate funds.

Case:  Allstate ATM Corp. v. E.S.A. Holding Corp., NY Slip Op 05898 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Duty to provide a safe workplace.

E-mails can constitute a binding fee arrangement.

Practice point: An exchange of e-mails may constitute an enforceable agreement if the writings include all of the agreement's essential terms, including the fee, or other cost, involved.

Student note: The existence of the valid and enforceable fee agreement precludes the causes of action sounding in quasi contract.

Case: Kasowitz, Benson, Torres & Friedman, LLP. v. Duane Reade, NY Slip Op 05889 (1st Dept. 2012).

Here is the decision. 

Monday’s issue: Piercing the corporate veil.

Lack of an original signature on a pleading, and leave to interpose an amended answer.

Practice point: The Appellate Division held that the Supreme Court should not have denied the plaintiff's motion for summary judgment on the ground that the affidavits submitted in support thereof were not originally signed. CPLR 2101(e), entitled "Form of papers," specifically states that copies, rather than originals, of all papers, including affidavits, may be served or filed.

Student note: The Appellate Division also held that the Supreme Court improvidently exercised its discretion in granting the defendant's motion for leave to interpose an amended answer so as to assert an additional counterclaim seeking damages allegedly incurred by the defendant as a result of a burglary at the subject premises in 2009. Pursuant to CPLR 3025(b), leave to amend a pleading should be freely given, provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.

Here, pursuant to the terms of the lease, the defendant may only seek to recover for damage or loss to its business from the plaintiff if it can truthfully allege that the plaintiff's negligence caused or contributed to that damage or loss and that the defendant was not insured for that damage or loss. In an affidavit of the defendant's vice-president, which was submitted in support of the cross motion, he specifically stated that they had insurance covering the burglary losses, and that they were reimbursed by their carrier. This admission, together with the lease provision, rendered the defendant's proposed counterclaim patently devoid of merit.

Case: Rechler Equity B-1, LLC v. AKR Corp., NY Slip Op 05813 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: E-mails can constitute a binding fee arrangement.

Collateral estoppel.

Practice point: Where a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from relitigating the issue of his liability, regardless of whether the conviction resulted from a plea or a trial.

Student note: The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action. The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination.

Case: Maiello v. Kirchner, NY Slip Op 05805 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Lack of an original signature on a pleading, and leave to interpose an amended answer.

Summary judgment in an age discrimination action.

Practice point: To establish entitlement to summary judgment dismissing a cause of action alleging age discrimination in violation of Executive Law § 296, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for its challenged actions, the absence of a material issue of fact as to whether its explanations were pretextual.

In opposition, plaintiff must show that there is a material issue of fact as to whether (1) the employer's asserted reason for the challenged action is false or unworthy of belief and, (2) it is more likely than not the employee's age was the real reason for the termination.

Student note: To support a prima facie case of age discrimination under the statute, the plaintiff must demonstrate (1) that plaintiff is a member of the class protected by the statute; (2) that plaintiff was actively or constructively discharged; (3) that plaintiff was qualified to hold the position from which plaintiff was terminated; and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination.

Case: Dzikowski v. J.J. Burns & Co., LLC, NY Slip Op 05797 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Collateral estoppel.

Grounds for the recovery of interest.

Practice point: The complaint did not state a cause of action because it set forth no contractual or statutory basis upon which plaintiff could recover interest. The obligation to pay interest on a debt is not implied as a matter of law. Consistently, the First Department has held that as a general rule, interest is allowed only when provided for by contract, express or implied, or by statute, or when, as damages, it becomes due after a default by the person liable for payment.

Student note: Pre-judgment or pre-decision interest is purely a creature of statute, based on Matter of Bello v. Roswell Park Cancer Inst., 5 NY3d 170 (2005). 

Case: Metwaly v. International Bus. Machines Corp., NY Slip Op 05791 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Summary judgment in an age discrimination action.

Attorney's fees in a matrimonial matter.

Practice point: Where there has been substantial compliance with the matrimonial rules, an attorney will be allowed to recover the fees owed for services rendered, but not yet paid for. The applicable rule is 22 NYCRR 1400.3, which mandates that an attorney in a matrimonial matter file a copy of the signed retainer agreement with the court, along with the statement of net worth. Here, the attorney was retained in March 2004, and the record shows that a copy of the executed retainer was filed with the court on May 14, 2004, along with the updated statement of net worth.

Student note: Even if plaintiff, as substituted counsel, should have filed the retainer within 10 days of its execution, he substantially complied with the requirements by filing the executed copy with the updated statement of net worth. Although it would have been better practice for plaintiff to have put proof of the filing in evidence on his direct case, his failure to do so does not change the fact that he substantially complied with the rule.

Case: Daniele v. Puntillo, NY Slip Op 05790 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Grounds for the recovery of interest.