Dismissal for failure to appear at a calendar call.

Practice point: The Supreme Court, sua sponte, improperly dismissed the action pursuant to 22 NYCRR 202.27 on the ground that the plaintiffs failed “to proceed as directed by the court” when they did not appear on a scheduled court date. The plaintiffs demonstrated that they did not have notice of the trial calendar call of the action through the uncontroverted affidavit of their attorney, which stated that counsel did not receive any notice for a court appearance. Without notice of the court appearance, the default was a nullity, as was the remedy imposed by the Supreme Court as a consequence of the default.

Student note: In this situation, vacatur was required as a matter of law and due process, and no showing of a potentially meritorious cause of action was required.

Case: Pavlou v. Associates Food Stores, Inc., NY Slip Op 04982 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Worker’s fall from a ladder.

Law of the case, and equitable affirmative defenses.

Practice point: Where issues have been raised and determined in a prior appeal, or if those issues could have been raised, their reconsideration is barred by the doctrine of law of the case, pursuant to  CPLR 5501[a]. The doctrine applies only to legal determinations that were necessarily resolved on the merits in the prior decision, and to the same questions presented in the same case.

Student note: On a claim to recover damages for unjust enrichment, equitable affirmative defenses could be properly asserted since the action is not one exclusively at law.

Case: Moran Enters., Inc. v. Hurst, NY Slip Op 04980 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Dismissal for failure to appear at a calendar call.

Common law indemnification.

Practice point: The key element of the cause of action is not a duty running from the indemnitor to the injured party, but a separate duty owed the indemnitee by the indemnitor.

Student note: Indemnity may be based on an express contract, but more commonly the indemnity obligation is implied, based on the law's notion of what is fair and proper as between the parties.

Case: Lovino, Inc. v. Lavallee Law Offs., NY Slip Op 04977 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Law of the case, and equitable affirmative defenses.

Motion to dismiss a legal malpractice claim.

Practice point: The motion, pursuant to CPLR 3211(a)(1), may be granted only if the movant’s documentary evidence utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law. Here, the defendants submitted a retainer agreement stating that there was "no assurance or guarantee of the outcome," and also that the agreement "does not include representation for . . . legal services after the Judgment of Trial Court . . . [or] [t]he Appeal of any decisions of the Trial Court." In opposing, the plaintiff’s affidavit detailed how the defendants failed to pursue a motion for leave to reargue or other application to modify a decision in the underlying action, submitted deficient or inappropriate proposed findings of fact and conclusions of law, and failed to adequately address various necessary issues during the trial. The court found that the retainer agreement was insufficient documentary evidence to dispose of those allegations.

Student note: A court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and upon considering such an affidavit, the facts alleged therein must also be assumed to be true.

Case: Harris v. Barbera, NY Slip Op 04973 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Common law indemnification

Experts' affidavits and amending bills of particulars.

Practice point: The court declined to consider the affidavit of the plaintiff's expert, since the plaintiff failed to identify the expert in pretrial disclosure, and served the affidavit, which was elicited solely to oppose the motion for summary judgment, after filing a note of issue and certificate of readiness attesting to the completion of discovery.

Student note: The court denied that branch of the plaintiff's cross motion which was for leave to amend her bill of particulars. The plaintiff failed to set forth any excuse for her delay in seeking to amend her bill of particulars, which was for more than two years after the note of issue was filed.

Case: Ames v. Kamco Supply Corp., NY Slip Op 04960 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion to dismiss a legal malpractice claim.

Notices of pendency.

Practice point: Pursuant to CPLR 6513, the notice is valid for three years from the date of filing, and may be extended for additional three-year periods upon a showing of good cause. However, the extension must be requested prior to the expiration of the prior notice.

Student note: A notice of pendency that has expired without extension is a nullity, and a lapsed notice may not be revived.

Case: Ampul Elec., Inc. v. Village of  Port Chester, NY Slip Op 04705 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Experts’ affidavits and amending bills of particulars.

Preliminary injunctions.

Practice point: A motion for a preliminary injunction opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading, but this power does not extend to an evaluation of conflicting evidence.

Student note: The motion court may not, on its own initiative, convert a motion for a preliminary injunction into one for summary judgment without giving adequate notice to the parties and affording them an opportunity to lay bare their proof.

Case: Alexandre v. Duvivier, NY Slip Op 04704 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Notices of pendency.

Joint representation conflicts.

Practice point: There is the potential for a conflict resulting from the firm’s joint representation, as each defendant has a competing interest in minimizing its proportional share of the damages.

Student note: An attorney may not place himself in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional relationship, and any doubt as to the existence of a conflict of interest must be resolved in favor of disqualification.

Case: Roddy v. Nederlander Producing Co. of Am., Inc., NY Slip Op 04685 (1st Dept. 2012).

 Here is the decision.

Tomorrow’s issue: Preliminary injunctions.

Bus drivers' negligence.

Practice point: Defendant made a prima facie showing that defendant-bus driver acted reasonably in an emergency situation not of his own making, and thus was not negligent. The bus driver testified that the bus was crossing an intersection when a car, traveling in the opposite direction, crossed over the double yellow lines and cut in front of the bus in order to make a left turn, forcing the bus driver to apply the brakes.

Student note: Plaintiff's testimony that the bus driver was "speeding" was insufficient to raise a triable issue of fact.

Case: Vega v. MTA Bus Co., NY Slip Op 04681 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Joint representation conflicts.

Remedies for an attorney discharged without cause.

Practice point: The three remedies of an attorney discharged without cause — the retaining lien, the charging lien, and the plenary action in quantum meruit — are not exclusive but cumulative, and the attorney does not waive the right to commence an immediate plenary action for a judgment against the client by commencing a proceeding to fix the amount of the charging lien.

Student note: An attorney may enforce the lien in a court other than that before which the  services were rendered.

Case: Balestriere PLLC v. BanxCorp, NY Slip Op 04675 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Bus drivers’ negligence.

Stating a cause of action sounding in legal malpractice.

Practice point: Plaintiff alleged that she was injured when she was struck in the neck by a piece of lumber; that defendant was negligent in urging her to settle the underlying personal injury action, and in advising her that an MRI was not necessary and that its results would not lead to a more favorable outcome of her case; that, after settling the case for $20,000, she obtained an MRI showing a disc herniation that required surgical intervention; that she remains permanently disabled; that defendant's negligence proximately caused her to sustain damages by not gaining the fair value for her case; and that she would have been successful in the underlying action had defendants exercised due care. These allegations were sufficient to state the claim.

Student note: Plaintiff was not required to show a likelihood of success in the underlying action, but was required only to plead facts from which it could reasonably be inferred that defendant's negligence caused her loss.

Case: Polanco v. Greenstein & Milbauer, LLP, NY Slip Op 04385 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Remedies for an attorney discharged without cause.