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.

Evidence.

Practice point: It was not an improvident exercise of the court's discretion to preclude plaintiff's expert from testifying to 15 days of alleged pain and suffering where, until the eve of trial, and without any explanation for lateness, plaintiff led defendants to believe that her expert would opine that she experienced 10 minutes of pain and suffering.

Student note: Nor did the trial court err in allowing defendants to introduce evidence of decedent's character, including a prior guilty plea to a shoplifting offense. Plaintiff sought to recover damages for loss of the "intellectual, moral, and physical guidance" incurred due to the loss of plaintiff as a parent to her daughter. This evidence is relevant to such a claim. In any event, plaintiff's counsel opened the door to evidence of decedent's shoplifting by affirmatively placing her character in issue in the opening statement.

Case: Sanchez v. City of New York, NY Slip Op 05787 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Attorney’s fees in a matrimonial matter.

Dismissal for failure to state a cause of action.

Practice point: A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint, pursuant to CPLR 3211[c].

Student note: When evidentiary material is considered, and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it has been shown that a material fact as offered by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it, the motion should be denied.

Case: Jannetti v. Whelan, NY Slip Op 05726 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Evidence.

Rear-end collisions.

Practice point: A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision.

Student note: Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation.

Case: Hauswirth v. Transcare N.Y., Inc., NY Slip Op 05723 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Dismissal for failure to state a cause of action.

Warranty of habitability.

Practice point: In the absence of fraud or a covenant, a commercial lessor does not represent that the premises are tenantable and may be used for the purpose for which they are apparently intended.

Student note: The implied warranty of habitability applies only to residential lease space, pursuant to Real Property Law § 235-b.

Case: Disunno v. WRH Props., LLC, NY Slip Op 05719 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Rear-end collisions.

Judicial review of arbitration awards.

Practice point: Judicial review of arbitration awards is extremely limited.

Student note: The award can be vacated pursuant to CPLR 7511(b)(1)(iii) if it is clearly violative of a strong public policy, if it is totally or completely irrational, or if it manifestly exceeds a specific, enumerated limitation on the arbitrator's power. In addition, it may be vacated if the court finds that a party's rights were prejudiced by corruption, fraud or misconduct in procuring the award, pursuant to CPLR 7511[b][1][i].

Case: Matter of Cusimano v. Strianese Family Ltd. Partnership, NY Slip Op 05633 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Warranty of habitability.