Making out a fraud claim.

Practice point: The cause of action will not lie where the only fraud claimed arises from the breach of a contract. A mere misrepresentation of an intent to perform under the contract is insufficient to sustain a cause of action to recover damages for fraud.

Student note: Conversely, a misrepresentation of material fact that is collateral to the contract and serves as an inducement for the contract is sufficient to sustain the cause of action.

Case: Gorman v. Fowkes, NY Slip Op 05614 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Constructive trusts.

Petitioning for judicial dissolution.

Practice point: BCL § 1104-a gives holders of 20% or more of the outstanding voting shares of a close corporation the right to petition for judicial dissolution as a remedy for illegal, fraudulent or oppressive conduct. However, pursuant to § 1118(a), the petition triggers the right of any other shareholder or shareholders or the corporation to elect to purchase the petioners' shares at their fair value.

Student note: This election, once made, is irrevocable.

Case: Ferolito v. Vultaggio, NY Slip Op 05707 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Making out a fraud claim.

Unlicensed home-improvement contractors.

Practice point: Administrative Code of the City of New York § 20-387 forbids the soliciting, canvassing, selling, performance, or obtaining of "a home improvement contract as a contractor or salesperson from an owner without a license therefor." Accordingly, an unlicensed home improvement contractor cannot recover for services rendered either on the contract or in quantum meruit.

Student note: This provision of the Administrative Code does not itself provide grounds for plaintiff to recoup fees already paid, because the law renders the contract rescinded and generally the parties should be left as they are. However, plaintiff retains the right at common law to seek restitution for payments she previously made for work that defendant failed to perform or for defective work.

Case: Wildenstein v. 5H & Co., Inc., NY Slip Op 05702. (1st Dept. 2012).

Here is the decision.

Monday’s issue: Petitioning for judicial dissolution.

Serving a late notice of claim.

Practice point: Service of a late notice of claim without leave of court is a nullity.

Student note: Moreover, the failure to seek a court order excusing such lateness within one year and 90 days after accrual of the claim requires dismissal of the action.

Case: Plaza v. New York Health and Hosps. Corp., NY Slip Op 05598 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Unlicensed home-improvement contractors.

Jurisdiction.

Practice point: The court properly exercised jurisdiction over defendants-appellants, pursuant to CPLR 302(a)(1). Proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.

Student note: Contrary to defendants-appellants' contention, there was no need to establish a formal agency relationship between them and the other defendants, since it was shown that the other defendants acted purposely in New York for their benefit and with their knowledge and consent, and that defendants-appellants exercised some control over the other defendants in the matter. Defendant Kagalovsky's negotiation of the partnership agreement in New York and defendant Iota LP's subsequent actions in New York, including its commencement of an action in federal court in New York based on the partnership agreement, are sufficient to show that defendants-appellants, through an agent, transacted business within the state (CPLR 302[a][1]).

Case: New Media Holding Co. LLC v. Kagalovsky, NY Slip Op 05597 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Serving a late notice of claim.

Violation of medical privacy.

Practice point: The claim was dismissed because defendants are neither physicians nor employees of a nursing home or a facility providing health-related services.

Student note: The Health Insurance Portability and Accountability Act and its regulations do not create a private right of action.

Case: Romanello v. Intesa Sanpaolo S.p.A., NY Slip Op 05595 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Jurisdiction.

Badminton injury.

Practice point: Defendant's motion for summary judgment dismissing the complaint was granted. At his deposition, the infant plaintiff described the activity as trying to spike the shuttlecock to a place away from the other player, in order to score points. This testimony established that the plaintiff was struck by an errant shot. The defendant established that it properly supervised the plaintiff, but, regardless, the plaintiff was injured by an errant shot of the shuttlecock that occurred in such a short period of time that any alleged lack of supervision was not a proximate cause of the injuries.

Student note: Plaintiff's expert’s affidavit submitted in opposition to the motion was insufficient to raise a triable issue of fact as to whether the defendant was negligent in failing to provide the plaintiff with protective eye gear, as there was no evidence to show that a recommendation to use such gear reflected a generally accepted standard or practice in high school.

Case: Gibbons v. Pine Bush Cent. Sch. Dist., NY Slip Op 05612 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Violation of medical privacy.

Duty to warn, and wheel stops.

Practice point: Although a landowner has a duty to maintain its premises in a reasonably safe manner, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous.

Student note: Generally, a wheel stop which is clearly visible presents no unreasonable risk of harm and, thus, is not inherently dangerous. The defendants made a prima facie showing that the wheel stop over which the plaintiff tripped, which was painted yellow in contrast to the color of the sidewalk to which it was affixed, was not an inherently dangerous condition, and was readily observable to those employing the reasonable use of their senses and, thus, open and obvious.

Case: Gallo v. Hempstead Turnpike, LLC, NY Slip Op 05611 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Badminton injury.

Discovery, and medical condition.

Practice point: There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by a party, pursuant to CPLR 3101[a][1]. The words “material and necessary” are to be interpreted liberally to require disclosure, if demanded, of any facts bearing on the controversy, if they will assist preparation for trial by sharpening the issues and reducing delay.

Student note: Where the mental or physical condition of a party is in controversy, a notice may be served pursuant to CPLR 3121(a) requiring that the party submit to a medical examination, or make available for inspection relevant hospital and medical records. The initial burden of proving that a party's medical condition is in controversy is on the party seeking the information, and it is only after such an evidentiary showing that discovery may proceed.

Case: Farkas v. Orange Regional Med. Ctr., NY Slip Op 05610 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Duty to warn, and wheel stops.

Vacating a default, and compelling defendant to accept a late answer.

Practice point: The court denied that branch of plaintiff's motion which was for leave to enter a judgment against defendant, upon its default in appearing or answering, and in granting defendant’s cross-motion to vacate  its default and to compel plaintiff to accept its late answer. While defendant had promptly sought an extension of time to answer, plaintiff ignored this request and instead moved for leave to enter a judgment against defendant. Thereafter, less than two months after its time to answer had expired, defendant served an answer. The court found that defendant acted diligently and never intended to abandon its defense or counterclaim.

Student note: In light of the lack of prejudice to plaintiff resulting from the short delay in serving an answer, the lack of willfulness on the defendant’s part, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, that branch of plaintiff's motion which was for leave to enter judgment on the issue of liability against defendant was providently denied, pursuant to CPLR 2004. Defendant's cross motion to compel plaintiff to accept its late answer was providently granted, pursuant to CPLR 3012 [d].

Case: Arias v. First Presbyt. Church in Jamaica, NY Slip 05606 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Discovery, and medical condition.

Employment discrimination based on disability.

Practice point: To state a prima facie case, a plaintiff must demonstrate that he or she suffered from a disability and that the disability caused the behavior for which he or she was terminated. Once a plaintiff establishes a prima facie case, the burden shifts to the employer, to show that the disability prevented plaintiff from performing the duties of the job in a reasonable manner, or that the employee's termination was motivated by a legitimate nondiscriminatory reason.

Student note: A reasonable accommodation is an action which permits an employee with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held,  provided, however, that such actions do not impose an undue hardship on the business, pursuant to Executive Law § 292 [21-e]. Under the City's Human Rights Law, an employer shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job, pursuant to Administrative Code § 8-107 [15][a]. An employer is not required to find another job for the employee, create a new job, or create a light-duty version of the current job.

Case: Jacobsen v. New York City Health and Hosps. Corp., NY Slip Op 05478 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Vacating a default, and compelling defendant to accept a late answer.