Fees for services while waiting for executed letter of intent.

Practice point: Appellate Division found that the motion court confused defendants' counterclaim for legal and consulting fees as consequential damages for plaintiffs' alleged fraud with plaintiffs' claim for similar fees pursuant to the parties' letter of intent, and erred in finding that defendants had not proved damages, inasmuch as they were not obligated to do so in opposition to plaintiffs' showing.

Student note: Appellate Division also found that even if plaintiffs' motion was predicated on defendants' failure to show loss causation, because they had engaged their attorneys and consultants prior to entering into negotiations with plaintiffs, plaintiffs failed to show that defendants did not incur fees for professional services during their negotiations and while waiting for plaintiffs to execute their copy of the letter of intent.

Case: Abyssinian Dev. Corp. v. Bistricer, NY Slip Op 07374 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Liability for a fall down a winding staircase.

Defective tree wells.

Practice point: In order to hold the City liable for injuries resulting from defects in tree wells in City-owned sidewalks, a plaintiff must demonstrate that the City has received prior written notice of the defect, pursuant to Administrative Code of the City of New York § 7-201[c][2].

Student note: Here, in opposition to the City's showing of entitlement to judgment as a matter of law, plaintiff submitted a Big Apple Map to prove that the City had notice of the allegedly defective condition. However, the map only provided notice that every tree well on the block lacked a fence or barrier, which was not sufficient to bring the particular condition to the City's attention.

Case: O’Donoghue v. City of New York, NY Slip Op 07371 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Fees for services while waiting for executed letter of intent.

Motions to withdraw as counsel.

Practice point: Where defendant's insurer in a personal injury action issues a contested disclaimer of coverage in the midst of litigation, it is inappropriate to grant a motion to withdraw by the attorney the insurer has provided.

Student note: The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court, and the court's decision should not be overturned on appeal absent a showing of an improvident exercise of discretion.

Case: McDonald v. Shore, NY Slip Op 07277 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Defective tree-wells.

Leading questions, and assuming facts not in evidence.

Practice point: The Appellate Division found that plaintiff's counsel's questions were not leading because they did not suggest the answer that counsel wished the expert to give. Instead, they were merely calculated to draw the witness' mind to the subject of inquiry.

Student note: The questions did not assume facts not in evidence because they were based either upon facts testified to by the defendant herself or upon opinions previously expressed by the expert. The jury was entitled to accept or reject both the underlying facts and the underlying opinions upon which an answer to these questions would have been based.

Case: Heines v. Minkowitz, NY Slip Op 07273 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motions to withdraw as counsel.

Cashiers' checks.

Practice point: A cashier's check is the primary obligation of the issuing bank which, acting as both drawer and drawee, accepts the check upon its issuance.

Student note: Once a bank issues a cashier's check, it cannot thereafter stop payment, even upon a request from its customer, unless there is evidence of fraud, or evidence that the check was lost, stolen, or destroyed.

Case: Golden v. Citibank, N.A., NY Slip Op 07272 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Leading questions, and assuming facts not in evidence.

Fiduciary relationships, and a right to an accounting.

Practice point: A fiduciary relationship arises when one is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation. It is grounded in a higher level of trust than normally present in the marketplace between those involved in arm's-length business transactions., and so a conventional business relationship, without more, is insufficient. Rather, a plaintiff must make a showing of special circumstances that could have transformed the parties' business relationship to a fiduciary one, such as control by one party of the other for the good of the other.

Student note: The right to an accounting rests on the existence of a trust or fiduciary relationship regarding the subject matter of the controversy at issue.

Case: DiTolla v. Doral Dental IPA of N.Y., LLC, NY Slip Op 07266 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Cashier’s checks.

Motions for leave to renew.

Practice point: The motion must be based upon new facts not offered on the original motion that would change the prior determination, pursuant to CPLR 2221[e][2]. The new or additional facts either must have not been known to the party seeking renewal, or may, in the court’s discretion, be based on facts known to the party seeking renewal at the time of the original motion.

Student note: However, in either instance, a reasonable justification for the failure to present such facts on the original motion must be presented, pursuant to CPLR 2221[e][3].

Case: Deutsche Bank Trust Co. v. Ghaness, NY Slip Op 07265 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Fiduciary relationships, and a right to an accounting.

Medical malpractice, and experts' opinions.

Practice point: When a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered.

Student note: Even if the defendant-physician did depart from accepted practice, plaintiff cannot defeat summary judgment if the expert’s assertion that this departure proximately caused the plaintiff's injuries is purely speculative.

Case: Bey v. Neuman, NY Slip Op 07262 (2d Dept. 2012).

 Here is the decision.

Monday’s issue: Motions for leave to renew.

Court holiday.

The courts are closed to mark Thanksgiving Day.

Tomorrow's issue: Medical malpractice, and experts' opinions.

More than one proximate cause, and comparative fault.

Practice point: There can be more than one proximate cause of an accident.

Student note: Therefore, the proponent of a summary judgment motion has the burden of establishing freedom from comparative fault as a matter of law.

Case: Antaki v. Mateo, NY Slip Op 07261 (2d Dept. 2012).

Here is the decision.

Friday’s issue: Medical malpractice, and experts’ opinions.

Liability when a non-owner is driving.

Practice point: Proof of ownership of a motor vehicle creates a rebuttable presumption that the driver was using the vehicle with the owner's permission, express or implied.

Student note: A finding of constructive consent requires a consensual link between the negligent operator and one whose possession of the car was authorized.

Case: Fiduciary Ins. Co. of Am. v. Jackson, NY Slip Op 07200 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: More than one proximate cause, and comparative fault.