In February 2002, plaintiff's decedent underwent a kidney transplant procedure, with a replacement cadaveric kidney supplied by defendant. Four and a half weeks later, a kidney biopsy revealed lesions in the new kidney. After several treatments to the implanted kidney, it was determined that it had been rejected and needed to be removed. The pathology report of the donor kidney showed extensive tumor infiltration, which a consulting physician determined to be evidence of lymphoma. Decedent died on September 19, 2002.
Plaintiff filed suit on September 20, 2004, and defendant moved to dismiss the complaint as barred by the 2½ year statute of limitations for medical malpractice actions (CPLR 214-a). The First Department denied the motion, in Rodriguez v. Saal, which was decided on August 2, 2007.
The court noted that when a complaint does not allege negligence in furnishing medical treatment to a patient, but, rather, the failure of a medical provider in fulfilling a different duty, the claim sounds in negligence. With this defendant, at issue are not questions of medical competence or treatment, but defendant's duties as a collection and distribution center of donated organs. Simply put, the issue to be resolved is whether defendant breached its duty to exercise due care in its organ collection activities.
August 10, 2007
The First Department vacated a compliance conference order directing defendants to provide plaintiff with all documents of similar incidents for the three years prior to the accident at issue, in Daniels v. Fairfield Presidential Mgt. Corp., which was decided on August 7, 2007. The court said that the directive was overly broad, and that the requested documents were neither material nor necessary to the prosecution of the action. "Discovery of evidence of prior similar accidents, while material in cases where a defect is alleged in the design or creation of a product or structure, is irrelevant and inappropriate in cases such as this, where no inherent defect is alleged."
August 9, 2007
Plaintiff, who alleged an injury while skiing, claimed that defendants had improperly set the skis' bindings so that they did not release during her fall. Two weeks before trial, defendants served plaintiff with expert witness information pursuant to CPLR 3101(d). This information included the report of an expert who opined that the alleged failure of the bindings to release could not have caused plaintiff's injury. Instead of seeking an adjournment of the trial, plaintiff moved to preclude defendants' expert from testifying. The motion was denied, and, at trial, the jury found that, while defendants were negligent, their negligence was not a substantial factor in causing plaintiff's injury.
The Second Department found that plaintiff's motion to preclude had properly been denied, in Rowan v. Cross County Ski & Skate, Inc., which was decided on July 31, 2007. The court said that CPLR 3101(d)(1)(i) does not require a party to respond to a demand for expert witness information at any specific time, nor does it mandate that a party be precluded from oferring expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party. The court found nothing in the record to support a conclusion that defendants' delay in retaining their expert or in serving their expert information was intentional or willful. Furthermore, disclosure of the expert information was not made on the eve of trial since plaintiff had two weeks within which to review the material prior to the trial date. Moreover, said the court, any potential prejudice to the plaintiffs could have been eliminated by an adjournment.
The Second Department found that plaintiff's motion to preclude had properly been denied, in Rowan v. Cross County Ski & Skate, Inc., which was decided on July 31, 2007. The court said that CPLR 3101(d)(1)(i) does not require a party to respond to a demand for expert witness information at any specific time, nor does it mandate that a party be precluded from oferring expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party. The court found nothing in the record to support a conclusion that defendants' delay in retaining their expert or in serving their expert information was intentional or willful. Furthermore, disclosure of the expert information was not made on the eve of trial since plaintiff had two weeks within which to review the material prior to the trial date. Moreover, said the court, any potential prejudice to the plaintiffs could have been eliminated by an adjournment.
August 8, 2007
The First Department dismissed a legal malpractice complaint arising out of a matrimonial action, in Fleming v. Vassallo, which was decided on August 2, 2007. Plaintiff had alleged that defendant directed her, over her objection, to reject a purported settlement offer from her former husband, and that, after years of costly litigation, she received far less than he had originally offered.
On the record, though, the court found evidence that no concrete settlement offer was made between March 1987, when the divorce action was commenced, and October 1987, when defendant was retained as counsel. Indeed, there was no evidence that there had ever been even a preliminary agreement as to the financial terms of a settlement.
Therefore, said the court, plaintiff had no cognizable claim that defendant committed malpractice by pressing forward with the litigation. The court added that it found no evidence that defendant was in any way responsible for the fact that the matrimonial action was ultimately resolved in a manner that was not to plaintiff's liking. To the contrary, the evidence showed that the disposition of the economic issues was dictated by the reduced financial circumstances of plaintiff's then-husband, and not by any mishandling of the matter by defendant.
On the record, though, the court found evidence that no concrete settlement offer was made between March 1987, when the divorce action was commenced, and October 1987, when defendant was retained as counsel. Indeed, there was no evidence that there had ever been even a preliminary agreement as to the financial terms of a settlement.
Therefore, said the court, plaintiff had no cognizable claim that defendant committed malpractice by pressing forward with the litigation. The court added that it found no evidence that defendant was in any way responsible for the fact that the matrimonial action was ultimately resolved in a manner that was not to plaintiff's liking. To the contrary, the evidence showed that the disposition of the economic issues was dictated by the reduced financial circumstances of plaintiff's then-husband, and not by any mishandling of the matter by defendant.
August 7, 2007
Finding improper service pursuant to CPLR 308(4), the Second Department dismissed the complaint as against the individual defendant in a medical malpractice action, in Abajian v. St. Francis Hosp., which was decided on July 31, 2007. The summons and complaint were affixed to the door of defendant's prior residence and not to his actual place of business, dwelling place or usual place of abode. Moreover, the attempts to serve the appellant pursuant to CPLR 308(1) and 308(2) prior to the employment of the "affix and mail" method of service did not satisfy the statutory requirement of "due diligence."
August 6, 2007
The First Department vacated an earlier judgment dismissing the action for failure to prosecute, in Feders v. Lamprecht, which was decided on August 2, 2007. The court found no intention to abandon the action, and defendants alleged no prejudice as a result of the delay. The motion court's sua sponte dismissal was based on plaintiff's counsel's failure to appear at a discovery compliance conference (22 NYCRR 202.27[b]), which apparently was the first such conference scheduled, and which was plaintiff's only default. However, plaintiff submitted evidence that counsel's absence from the conference was the result of injuries suffered in an automobile accident several weeks before the conference date, and defense counsel had been so advised. The court found that this was a reasonable excuse for the default. The court also found that any delay in prosecuting was minimal, given that only 11 months had elapsed between filing of the action and dismissal, and only 41 days from joinder of issue to dismissal. Furthermore, plaintiff promptly sought vacatur.
The court also said that the motion court's dismissal violated the provisions of CPLR 3216(b). Specifically, the record shows that two of the conditions necessary for dismissal were not met: passage of one year since joinder of issue (CPLR 3216[b][2]), and service of a written demand on plaintiff to resume prosecution and to serve and file a note of issue within 90 days of receipt of the demand (CPLR 3216[b][3]).
The court also said that the motion court's dismissal violated the provisions of CPLR 3216(b). Specifically, the record shows that two of the conditions necessary for dismissal were not met: passage of one year since joinder of issue (CPLR 3216[b][2]), and service of a written demand on plaintiff to resume prosecution and to serve and file a note of issue within 90 days of receipt of the demand (CPLR 3216[b][3]).
August 3, 2007
Pursuant to a written employment agreement with nonparty-Miller Center, plaintiff agreed to serve as the Executive Director of the Miller Center's two nursing homes for a period of two years commencing April 1, 1990, with base and additional salary to be adjusted yearly. The terms of the employment agreement included the following relevant sections:
"1. Term of Employment
b. Subject to the terms of Section 6 hereof, the parties hereto agree to enter into good faith negotiations not less than nine (9) months prior to the end of the Employment Period with respect to renewal of this Agreement on mutually agreeable terms."
"6.Termination. This Agreement may be terminated:
a.By mutual agreement of the parties;
b. By either party giving notice to the other at least six (6) months prior to the end of the Employment Period of its intention not to renew this Agreement in accordance with the notice provision of Section 9 . . .
f.The Miller Center will, as of the effective date of termination or expiration of this Agreement, be released of any responsibility or obligation hereunder, except for payment of salary and benefits accrued to the effective date of such expiration or termination."
"9.Notice. Any notice hereunder will be in writing and shall be sent by certified mail, return receipt requested, to the parties at their addresses set forth below, or to such other addresses as the parties may from time to time fix in the same manner . . . ."
The employment agreement also provided, in section 8, that it constituted the entire agreement and understanding between the parties, that neither party would be bound by any condition, warranty or representation other than as expressly provided for therein, and that neither party could waive her or its rights thereunder, unless in writing.
On October 27, 2004, the Miller Center completed the sale of its nursing facilities to defendant-White Plains Center for Nursing Care. Simultaneously, defendant agreed to assume, pursuant to an Assignment and Assumptions of Contracts agreement, the Miller Center's existing contracts, including plaintiff's employment agreement. On January 19, 2005, three months after acquiring the nursing homes, defendant terminated plaintiff's employment.
In support of her motion for partial summary judgment, plaintiff argued that her employment agreement, having been extended over a period of many years by the parties, in successive two-year terms, was last renewed for the term April 1, 2004 through March 31, 2006, and was therefore breached when defendant discharged her on January 19, 2005.
In support of its cross motion to dismiss the breach of contract claim, defendant argued that the employment agreement had never been renewed and that it expired by its own terms on March 31, 1992, thereby rendering plaintiff an employee at will. The motion court granted plaintiff summary judgment, ruling that while the statute of frauds barred any presumption of renewal for the original two-year term, the employment agreement had been impliedly renewed by operation of law for successive one-year extensions through March 31, 2006.
The First Department rejected that interpretation of the agreement and dismissed the complaint, in Goldman v. White Plains Ctr. for Nursing Care, which was decided on August 2, 2007.
"Where, as here, the terms of an agreement are clear and unambiguous, its plain meaning should be enforced without regard to consideration of extrinsic evidence of the parties' understanding or intent. In support of her argument that the term of her employment automatically renewed, plaintiff proffered no evidence that, in accordance with section 1b, the parties entered into negotiations with respect to the renewal of the agreement or that an extension agreement was in fact executed. In fact, plaintiff's argument contradicts the agreement's clear and unambiguous language that her term of employment was to be for a two-year period commencing April 1, 1990 unless it was terminated by mutual agreement or either party's notice of its intention not to renew. Plaintiff's argument, if we were to accept it, would also render meaningless the agreement's distinction between "termination" and "expiration," as well as the provision that renewal negotiations were to be begun no less than nine months prior to the end of the employment period."
"1. Term of Employment
b. Subject to the terms of Section 6 hereof, the parties hereto agree to enter into good faith negotiations not less than nine (9) months prior to the end of the Employment Period with respect to renewal of this Agreement on mutually agreeable terms."
"6.Termination. This Agreement may be terminated:
a.By mutual agreement of the parties;
b. By either party giving notice to the other at least six (6) months prior to the end of the Employment Period of its intention not to renew this Agreement in accordance with the notice provision of Section 9 . . .
f.The Miller Center will, as of the effective date of termination or expiration of this Agreement, be released of any responsibility or obligation hereunder, except for payment of salary and benefits accrued to the effective date of such expiration or termination."
"9.Notice. Any notice hereunder will be in writing and shall be sent by certified mail, return receipt requested, to the parties at their addresses set forth below, or to such other addresses as the parties may from time to time fix in the same manner . . . ."
The employment agreement also provided, in section 8, that it constituted the entire agreement and understanding between the parties, that neither party would be bound by any condition, warranty or representation other than as expressly provided for therein, and that neither party could waive her or its rights thereunder, unless in writing.
On October 27, 2004, the Miller Center completed the sale of its nursing facilities to defendant-White Plains Center for Nursing Care. Simultaneously, defendant agreed to assume, pursuant to an Assignment and Assumptions of Contracts agreement, the Miller Center's existing contracts, including plaintiff's employment agreement. On January 19, 2005, three months after acquiring the nursing homes, defendant terminated plaintiff's employment.
In support of her motion for partial summary judgment, plaintiff argued that her employment agreement, having been extended over a period of many years by the parties, in successive two-year terms, was last renewed for the term April 1, 2004 through March 31, 2006, and was therefore breached when defendant discharged her on January 19, 2005.
In support of its cross motion to dismiss the breach of contract claim, defendant argued that the employment agreement had never been renewed and that it expired by its own terms on March 31, 1992, thereby rendering plaintiff an employee at will. The motion court granted plaintiff summary judgment, ruling that while the statute of frauds barred any presumption of renewal for the original two-year term, the employment agreement had been impliedly renewed by operation of law for successive one-year extensions through March 31, 2006.
The First Department rejected that interpretation of the agreement and dismissed the complaint, in Goldman v. White Plains Ctr. for Nursing Care, which was decided on August 2, 2007.
"Where, as here, the terms of an agreement are clear and unambiguous, its plain meaning should be enforced without regard to consideration of extrinsic evidence of the parties' understanding or intent. In support of her argument that the term of her employment automatically renewed, plaintiff proffered no evidence that, in accordance with section 1b, the parties entered into negotiations with respect to the renewal of the agreement or that an extension agreement was in fact executed. In fact, plaintiff's argument contradicts the agreement's clear and unambiguous language that her term of employment was to be for a two-year period commencing April 1, 1990 unless it was terminated by mutual agreement or either party's notice of its intention not to renew. Plaintiff's argument, if we were to accept it, would also render meaningless the agreement's distinction between "termination" and "expiration," as well as the provision that renewal negotiations were to be begun no less than nine months prior to the end of the employment period."
August 2, 2007
In connection with the sale of their residential property, defendants-sellers completed a Property Condition Disclosure Statement in which they answered "No" to certain questions, thereby indicating that there were: no material defects in the footings; no rotting or water damage; no flooding, drainage, or grading problems that resulted in standing water on any portion of the property; no seepage in the basement that resulted in standing water; and no known material defects in the plumbing system, foundation/slab, interior walls/ceilings, exterior walls or siding, floors, chimney and patio/deck, and that no radon test had been done.
Defendant-broker showed the property to plaintiff, and provided him with a copy of the Disclosure Statement. Plaintiff then contracted with defendant-inspection services to perform a home inspection. The inspection report did not state that there was any material defect in the property. The property went into contract and, subsequent to the closing, plaintiff allegedly discovered material defects in the property including: water leaking through the porch; the rear deck sinking because of excessive water and pooling of water; the roof separating from the rest of the house due to the deck sinking; improper footings on the deck; mold behind the sheetrock caused by water in the basement; the radon system blower was inoperative; a cracked chimney, rotted bathroom floors due to excessive water leakage; and evidence of long-term heavy water damage on the garage roof and walls.
Plaintiff commenced this action to recover damages, and the First Department found a cause of action in fraudulent misrepresentation, but denied a cause of action in breach of contract, in Simone v. Homecheck Real Estate Servs., which was decided on July 24, 2007.
As regards fraud, the court noted that New York adheres to the doctrine of caveat emptor and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller which constitutes active concealment. The mere silence of the seller, without some act or conduct which deceived the buyer, does not amount to a concealment that is actionable as a fraud. To maintain a cause of action to recover damages for active concealment in the context of a fraudulent nondisclosure, the buyer must show, in effect, that the seller thwarted the buyer's efforts to fulfill the buyer's responsibilities fixed by the doctrine of caveat emptor.
The court found that that the alleged false representations by the sellers in the Disclosure Statement may be proof of active concealment.
As regards the breach of contract, however, the court said that there is no cause of action where the contract specifically disclaims the existence of warranties or representations. Here, the contract of sale specifically provided that the property had been inspected by the buyer and was being sold "as is" without any warranty as to condition, express or implied. Furthermore, a specific merger clause is contained in the rider to the contract and precludes the buyer from claiming that he relied on any of the sellers' alleged misrepresentations. In addition, because title to the property had closed and the deed was delivered, the doctrine of merger extinguished any claim the buyer may have had regarding the contract of sale.
Defendant-broker showed the property to plaintiff, and provided him with a copy of the Disclosure Statement. Plaintiff then contracted with defendant-inspection services to perform a home inspection. The inspection report did not state that there was any material defect in the property. The property went into contract and, subsequent to the closing, plaintiff allegedly discovered material defects in the property including: water leaking through the porch; the rear deck sinking because of excessive water and pooling of water; the roof separating from the rest of the house due to the deck sinking; improper footings on the deck; mold behind the sheetrock caused by water in the basement; the radon system blower was inoperative; a cracked chimney, rotted bathroom floors due to excessive water leakage; and evidence of long-term heavy water damage on the garage roof and walls.
Plaintiff commenced this action to recover damages, and the First Department found a cause of action in fraudulent misrepresentation, but denied a cause of action in breach of contract, in Simone v. Homecheck Real Estate Servs., which was decided on July 24, 2007.
As regards fraud, the court noted that New York adheres to the doctrine of caveat emptor and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller which constitutes active concealment. The mere silence of the seller, without some act or conduct which deceived the buyer, does not amount to a concealment that is actionable as a fraud. To maintain a cause of action to recover damages for active concealment in the context of a fraudulent nondisclosure, the buyer must show, in effect, that the seller thwarted the buyer's efforts to fulfill the buyer's responsibilities fixed by the doctrine of caveat emptor.
The court found that that the alleged false representations by the sellers in the Disclosure Statement may be proof of active concealment.
As regards the breach of contract, however, the court said that there is no cause of action where the contract specifically disclaims the existence of warranties or representations. Here, the contract of sale specifically provided that the property had been inspected by the buyer and was being sold "as is" without any warranty as to condition, express or implied. Furthermore, a specific merger clause is contained in the rider to the contract and precludes the buyer from claiming that he relied on any of the sellers' alleged misrepresentations. In addition, because title to the property had closed and the deed was delivered, the doctrine of merger extinguished any claim the buyer may have had regarding the contract of sale.
August 1, 2007
Plaintiff commenced this medical malpractice action on December 19, 2003, claiming, among other things, that defendant had failed to diagnose her thyroid cancer. In moving for summary judgment, defendant argued that any alleged acts of malpractice occurring before June 22, 2001, were time-barred because they took place more than two-and-one-half years before the suit was filed. Finding a triable issue as to whether the statute was tolled by the continuous treatment doctrine, the Second Department denied the motion, in Connors v. Eng, which was decided on July 24, 2007.
Plaintiff's affidavit demonstrated that she initially saw the defendant on May 19, 1988, for an evaluation of her thyroid and thyroid nodule, and that, until May 18, 2002, she returned to the defendant's office 41 times for the purpose of monitoring her thyroid nodule.
Plaintiff's affidavit demonstrated that she initially saw the defendant on May 19, 1988, for an evaluation of her thyroid and thyroid nodule, and that, until May 18, 2002, she returned to the defendant's office 41 times for the purpose of monitoring her thyroid nodule.
July 31, 2007
Defendant, a board-certified obstetrician/gynecologist who treated plaintiff during her pregnancy, was unexpectedly late in getting to the hospital to attend to plaintiff's labor and delivery. Nonetheless, he confirmed by telephone that an on-call attending obstetrician and the chief obstetrical resident were caring for the patient pending his arrival. Defendant arrived at the hospital shortly after the birth, when plaintiff was undergoing the repair of a perineal laceration which she had sustained during delivery.
After the delivery, plaintiff began to experience severe urinary incontinence, which has now been resolved, and approximately one year later she began to suffer from fecal incontinence. Approximately two-and-one-half years after giving birth, she underwent surgery to repair a torn sphincter. Plaintiff claimed that she continues to suffer from permanent fecal incontinence caused by nerve damage, and she contended that, with proper management by an experienced obstetrician/gynecologist, the perineum tear could have been avoided. Plaintiff argued that, had defendant been present, his experience might have led him to perform an episiotomy, which would have prevented the perineum tear that extended into her anal sphincter. Instead, she claimed, the delivery was left to an inexperienced resident, who performed a faulty repair of the perineal laceration.
The First Department dismissed the complaint, in Brown v. Bauman, which was decided on July 26, 2007. The court noted that a physician who is unable to care for the patient does not depart from the standard of care so long as the physician arranges to transfer the care of the patient to another well-qualified physician. On this record, the court determined that defendant had established, as a matter of law, his compliance with the requisite standard of care, even though there was some question as to exactly when, or even if, he specifically asked the other physicians to cover for him.
After the delivery, plaintiff began to experience severe urinary incontinence, which has now been resolved, and approximately one year later she began to suffer from fecal incontinence. Approximately two-and-one-half years after giving birth, she underwent surgery to repair a torn sphincter. Plaintiff claimed that she continues to suffer from permanent fecal incontinence caused by nerve damage, and she contended that, with proper management by an experienced obstetrician/gynecologist, the perineum tear could have been avoided. Plaintiff argued that, had defendant been present, his experience might have led him to perform an episiotomy, which would have prevented the perineum tear that extended into her anal sphincter. Instead, she claimed, the delivery was left to an inexperienced resident, who performed a faulty repair of the perineal laceration.
The First Department dismissed the complaint, in Brown v. Bauman, which was decided on July 26, 2007. The court noted that a physician who is unable to care for the patient does not depart from the standard of care so long as the physician arranges to transfer the care of the patient to another well-qualified physician. On this record, the court determined that defendant had established, as a matter of law, his compliance with the requisite standard of care, even though there was some question as to exactly when, or even if, he specifically asked the other physicians to cover for him.
July 30, 2007
Taking the plunge and bearing the risks.
Plaintiff is an attorney and experienced investor who retained defendant to manage approximately $600,000 of plaintiff's assets. He had reviewed and completed various documents provided by defendant, including a questionnaire concerning his risk tolerance and management objective. Plaintiff's risk assessment stated that on a scale of 1 to 10, his risk comfort level was 6, with a maximum risk level of 8. His stated that his portfolio management objective was to "Beat the Market - High Risk/Return."
Plaintiff reviewed and signed an investment policy statement which provided that plaintiff's portfolio would be a moderately aggressive growth and equity portfolio, and that "the Investment Manager(s) has been given full investment discretion with respect to the portion of the Portfolio it manages to allocate among assets equities, fixed income securities and cash equivalents and to purchase and sell individual securities. Such investment discretion will be exercised consistent with the stated investment objectives, risk tolerance, goals and guidelines of the Portfolio." It went on to state, in two places, that the portfolio would be managed in a "prudent manner," and further provided that "The equity portions of the Portfolio should be well-diversified among economic sectors, industry groups, and individual securities to avoid any undue exposure in any part of the U.S. equity market."
After plaintiff's initial $599,000 investment had declined in value by 39% to approximately $365,000, he closed his account and commenced a class action on behalf of himself and all others whose investment accounts were managed by defendant. The First Department found no evidence that defendant had breached its fiduciary duty, and dismissed the complaint, in Vladimir v. Cowperthwait, which was decided on July 26, 2007.
The court noted that plaintiff was an experienced investor who habitually selected his own stocks for investment, using the services of a broker only to execute his buy and sell orders. His deposition testimony states he was looking for "growth" and that he "wanted to beat the market." The client agreement signed by plaintiff acknowledges that there was no guarantee that his investment strategy would be achieved. Plaintiff acknowledged in his examination before trial that prior to investing in the Large Cap Growth Equity Portfolio, he was provided with a list of all the companies in the portfolio, and, although he did not examine the list in detail, he noticed that some of the companies were in the technology sector and did not object to their being in the fund. He also testified that he regularly reviewed his monthly statements and repeatedly discussed them with his broker during the entire time he was involved with defendant.
Plaintiff is an attorney and experienced investor who retained defendant to manage approximately $600,000 of plaintiff's assets. He had reviewed and completed various documents provided by defendant, including a questionnaire concerning his risk tolerance and management objective. Plaintiff's risk assessment stated that on a scale of 1 to 10, his risk comfort level was 6, with a maximum risk level of 8. His stated that his portfolio management objective was to "Beat the Market - High Risk/Return."
Plaintiff reviewed and signed an investment policy statement which provided that plaintiff's portfolio would be a moderately aggressive growth and equity portfolio, and that "the Investment Manager(s) has been given full investment discretion with respect to the portion of the Portfolio it manages to allocate among assets equities, fixed income securities and cash equivalents and to purchase and sell individual securities. Such investment discretion will be exercised consistent with the stated investment objectives, risk tolerance, goals and guidelines of the Portfolio." It went on to state, in two places, that the portfolio would be managed in a "prudent manner," and further provided that "The equity portions of the Portfolio should be well-diversified among economic sectors, industry groups, and individual securities to avoid any undue exposure in any part of the U.S. equity market."
After plaintiff's initial $599,000 investment had declined in value by 39% to approximately $365,000, he closed his account and commenced a class action on behalf of himself and all others whose investment accounts were managed by defendant. The First Department found no evidence that defendant had breached its fiduciary duty, and dismissed the complaint, in Vladimir v. Cowperthwait, which was decided on July 26, 2007.
The court noted that plaintiff was an experienced investor who habitually selected his own stocks for investment, using the services of a broker only to execute his buy and sell orders. His deposition testimony states he was looking for "growth" and that he "wanted to beat the market." The client agreement signed by plaintiff acknowledges that there was no guarantee that his investment strategy would be achieved. Plaintiff acknowledged in his examination before trial that prior to investing in the Large Cap Growth Equity Portfolio, he was provided with a list of all the companies in the portfolio, and, although he did not examine the list in detail, he noticed that some of the companies were in the technology sector and did not object to their being in the fund. He also testified that he regularly reviewed his monthly statements and repeatedly discussed them with his broker during the entire time he was involved with defendant.
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