A defendant's summary judgment motion in a legal malpractice action.

Practice Point:  The Appellate Division affirmed the denial of defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against him. He failed to show, prima facie, that the plaintiff was unable to prove at least one of the essential elements of his legal malpractice cause of action, namely, he did not establish that successor counsel had a sufficient opportunity to protect the plaintiff's rights such that his conduct could not have proximately caused the plaintiff's alleged damages. Failure to make such a showing required denial of the motion, regardless of the sufficiency of the opposing papers.

Student note:  The elements of a cause of action sounding in legal malpractice are that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages. To succeed on a motion for summary judgment, the defendant in an action to recover damages for legal malpractice must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of the essential elements of the cause of action.

Case:  Anisman v. Nissman, NY Slip Op03218 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Fraud claims and the particularity requirement.

Liability when a plaintiff was thrown from a bike into a bus in a split-second.

Practice point:  A defendant is not liable where he or she is faced with a sudden and unforeseen occurrence that was not of his own making.. Here, defendant-cab driver opened his driver's side door, causing plaintiff to be thrown from his bicycle into the path of an oncoming bus. Testimony concerning the length of time that elapsed from plaintiff' being thrown from his bike and the impact with defendant-Transit Authority's bus consistently stated that it was only an instant or a second, an insufficient length of time to constitute actionable negligence.

Student note:  The only evidence that could have served as the basis for the jury's verdict against the Transit Authority was inadmissible, since it was based, at least in part, on the Authority's own rules and internal standards which hold the Authority to a higher standard of care than the common law.

Case:  Cropper v. Stewart, NY Slip Op 03018 (1st Dept. 2014)

 Here is the decision.

Tomorrow's issue: A defendant's summary judgment motion in a legal malpractice action.

Successive motions for summary judgment, and certificates of conformity.

Practice point:  Despite the general rule that successive motions for summary judgment should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause, a successive motion may be properly entertained where it is substantively valid, and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts.
Student note:  The absence of a certificate of conformity in violation of CPLR 2309 is not a fatal defect, and, if relief is denied on that ground, the denial should be without prejudice to renewal upon proper papers.
Case:  Fuller v. Nesbitt, NY Slip Op 02897 (2d Dept. 2014)
Here is the decision.
Monday's issue: Liability when a plaintiff was thrown from a bike into a bus in a split-second.

Summary judgment in an action based on a playground fall.

Practice point:  The Appellate Division reversed the granting of summary judgment in this action where the infant plaintiff injured his shoulder when, while playing football during recess in defendants' school playground, he tripped over a crack in the pavement and fell to the ground. Plaintiff submitted evidence, including photographs of the playground, sufficient to raise triable issues as to whether the subject crack had been present for a sufficient period time to give rise to constructive notice.

Student note: Defendants submitted their employee's testimony and the accident report showing that the infant plaintiff did not initially identify the cause of his accident, and so they established an absence of proximate causation between their alleged negligent maintenance of the premises and the accident. However,  the infant plaintiff's affidavit stating that he tripped and fell on the crack while playing football was enough to raise an issue of the connection between the accident to the defect.

Case: Pagan v. City of New York, NY Slip Op 03017 (1st Dept. 2014)

Here is the decision. 

Tomorrow's issue:  Successive motions for summary judgment, and certificates of conformity.

A fall on a wet locker room floor.

Practice point:  The defendant met its initial burden of demonstrating lack of notice of the wet condition by submitting evidence that it followed its routine maintenance and inspection procedures, and that the condition was not observed either by maintenance staff when they inspected the area, or by plaintiff and her daughter. Testimony that the plaintiff and her daughter had seen water on the locker room floor on several other occasions and that the daughter had complained about it demonstrates, at most, that the defendant had a general awareness of a wet condition, which is insufficient to raise a triable issue of fact as to notice.

Student note: The plaintiff's expert's affidavit was conclusory, and failed to cite any accepted industry practice, standard, code or regulation that had been violated.

Case:  Phillip v. Young Men's Christian Assn. of Greater N.Y., NY Slip Op 03013 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Summary judgment in a action based on a playground fall.

A worker's fall from a ladder, and a motion to compel discovery of plaintiff's medical records.

Practice point:  The court granted plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240(1) claim, as there was uncontradicted deposition testimony that the unsecured extended ladder upon which plaintiff was working slipped and fell out from underneath him. Plaintiff's actions were not the sole proximate cause of the accident, since the deposition testimony established that his coworker, unknown to plaintiff and in departure from their normal procedure, stopped footing the base of the ladder while plaintiff was still climbing it, thereby allowing it to slip out from underneath plaintiff.
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The court denied defendants' motion to compel plaintiff's authorizations allowing defendants to obtain all medical records pertaining to his psychological condition and treatment, as plaintiff did not seek to recover damages for emotional or psychological injury, or aggravation of a preexisting emotional or mental condition  Plaintiff's bill of particulars alleged damages for specific physical injuries in his lower back. His general allegations of "anxiety and mental anguish" resulting from his back injuries did not place his entire mental health history into contention.

Student note:  As the court granted plaintiff partial summary judgment on his Labor Law § 240(1) claim, it was not necessary for the court to address his Labor Law § 241(6) claim.

Case:  Serra v. Goldman Sachs Group, Inc., NY Slip Op 02881 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A fall on a wet locker room floor.

An attorney's overzealousness and the Judiciary Law.

Practice point:  The Appellate Division determined that the allegations of tbe attorney's conduct in his representation of defendant during settlement discussions with plaintiff, which plaintiff characterizes as "overzealous and intimidating," do not state a cause of action under Judiciary Law § 487. The complaint alleges neither an intent to deceive nor a chronic and extreme pattern of legal delinquency that caused plaintiff a loss.

Student note:  In addition, the Appellate Division noted that the only allegations of wrongdoing refer to a settlement discussion had after the defendant commenced a legal proceeding, and that communication is absolutely privileged.

Case:  Wailes v. Tel Networks USA, LLC, NY Slip Op 02861 (1st Dept. 2014)

Here is the decision.

Tomorrow' issue: A worker's fall from a ladder, and a motion to compel discovery of plaintiff's medical records.

A cause of action for civil conspiracy.

Practice point:  Under New York law, in order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement. A bare conclusory allegation of conspiracy is usually insufficient.

Student note:  New York does not recognize civil conspiracy to commit a tort as an independent cause of action.  However, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme. The allegation of conspiracy carries no greater burden, but also no less, than to assert adequately common action for a common purpose by common agreement or understanding among a group, from which common responsibility derives.

Case:  Blanco v. Polanco, NY Slip Op 02735 (2d Dept. 2014)

Here is the decision.

Monday's issue:  An attorney's alleged overzealousness and the Judiciary Law.

A divorce action, and a referre's overstepping his bounds.

Practice point:  Plaintiff commenced this divorce action on the ground of constructive abandonment, and, at a preliminary conference, the parties, each represented by counsel, stipulated that defendant would assert a counterclaim for divorce on the ground of constructive abandonment, and plaintiff withdrew her claim. The outstanding financial matters were referred to a special referee to hear and determine. The parties then stipulated that the referee would also hear and determine the issue of grounds, pursuant to their preliminary conference stipulation. However, at the hearing, defendant made an application to withdraw his counterclaim, and, over plaintiff's objection, the referee granted the application, leaving plaintiff without a cause of action for divorce. The referee then granted plaintiff's application to reinstate her claim for divorce. Although the referee stated that he was permitting plaintiff to proceed by inquest, instead he conducted a full trial on grounds, at which defendant was permitted to interpose opposition. The referee denied the divorce.

The Appellate Division determined that the referee exceeded his authority when he permitted defendant to withdraw his counterclaim for constructive abandonment, and conducted a fully contested trial on plaintiff's previously-withdrawn claim. The referral by the court, as thereafter expanded by the parties' stipulation, did not give the referee authority to set aside any part of the parties' stipulation, pursuant to CPLR 4311; By clear and unambiguous terms, defendant had waived his right to withdraw his counterclaim.

Student note: Even if the Referee had the authority to set aside the stipulation, there was no legal basis whatsoever was set forth justifying setting it aside.

Case:  Karpov v. Shiryaev, NY Slip Op 02848 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A cause of action for civil conspiracy.

An attorney sues for fees, claiming breach of contract and unjust enrichment.

Practice point:  A claim for unjust enrichment does not lie where it duplicates or replaces a conventional contract claim.  So, the attorney cannot seek damages for unjust enrichment where, as here, the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties. However, where there is a bona fide dispute as to the existence of a contract or the application of a contract in a dispute, a plaintiff may proceed on the theories of both quasi contract and breach of contract.

Student note:  There can be no quasi-contract claim against a third-party non-signatory to a contract that covers the subject matter of the claim.

Case:  Scarola Ellis LLP v. Padeh, NY Slip Op 02847 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A divorce action, and a referee's overstepping his bounds.

A motion to dismiss for failure to state a cause of action.

Practice point:  The motion was denied because, among other things, the complaint's allegations which assert a claim for damages as a result of the defendants' alleged breach of an agreement to pay an earned commission clearly fit within a cognizable legal theory. In addition, the question of whether the plaintiff will ultimately establish its entitlement to an earned commission is not a proper consideration in determining the motion.

Student note:  On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Case:  Atlantic Capital Realty v. Cayuga Capital Mgt., LLC, NY 02733 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An attorney sues for fees, claiming breach of contract and unjust enrichment.