A defamation claim and immunity.

Practice point:  Plaintiff-physician, who had treated a workers' compensation claimant, alleges that he was defamed in his profession by a report prepared by defendant, a consultant hired by the workers' compensation insurer to determine whether certain medications and treatment prescribed the claimant were indicated. Plaintiff alleges that defendant exceeded the scope of his assigned task by reporting that the medical records he reviewed indicated possible fraudulent billing and unnecessary treatment rendered, and recommending that the matter be referred to the Office of Professional Misconduct and the Attorney General's Office.

The Appellate Division modified the motion court's determination and reinstated the action sounding in libel per se. Defendant's communications are not cloaked with absolute immunity since there is no showing that he was engaged in a public function when he published the report, pursuant to Workers' Compensation Law § 20. In addition, there were no adversarial proceedings at the time of the report's publication.

Neither are defendant's communications subject to qualified immunity, as plaintiff's detailed allegations, accepted as true for purposes of the motion, are enough to establish actual malice.

Student note:  The Appellate Division affirmed dismissal of the claim sounding in intentional infliction of emotional distress, as defendant's report does go beyond all possible bounds of decency so as to be regarded as atrocious and intolerable in a civilized community.

Case:  Schottenstein v. Silverman, NY Slip Op 04416 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion to vacate a default.

Terminating a tenancy.

Practice point:  The Appellate Division confirmed the termination of petitioner's tenancy on the grounds of undesirability and violation of provisions of the lease and rules and regulations, finding that the agency's determination that, among other things, petitioner caused a fire in her apartment by lighting a candle in a closet containing clothing, is supported by substantial evidence.  The record also shows that petitioner had a prior fire in her apartment and that she kept two unregistered pitbull terrier dogs in her apartment.

Student note:  The agency's refusal to accommodate petitioner by continuing her tenancy subject to the agency's continued monitoring of her mental health and fire safety compliance did not violate the Americans with Disabilities Act or the Fair Housing Amendments Act of 1988.

Case:  Hobbs v. New York City Hous. Auth., NY Slip Op 04406 (1st Dept. 2015)

Here is the decision.

Monday's issue: A defamation claim and immunity.

Setting aside a foreclosure sale.

Practice point:  As a function of its equitable powers, a court has discretion to set aside a foreclosure sale where there is evidence of fraud, collusion, mistake, or misconduct.

Student note:  In the absence of such conduct, the mere inadequacy of price is an insufficient reason to set aside a sale unless the price is so inadequate as to shock the court's conscience.

Case:  Chiao v, Poon, NY Slip Op 04268 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Terminating a tenancy.

Waiving an argument of duress.

Practice point:  The Appellate Division affirmed dismissal, finding that, by waiting too long to file the instant action, plaintiffs waived their argument that they signed the subject release under duress. The Appellate Division noted that, while plaintiffs might have been excused from suing for the first two years due to their fear of the look-back period, they delayed an additional 10 months beyond those two years.

Student note:  Even if there were triable issues exist as to unconscionability and overreaching, plaintiffs' ratification of the release bars them from challenging it on those grounds.

Case:  Achache v. Achache, NY Slip Op 04386 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Setting aside a foreclosure sale.

Contract interpretation.

Practice point:  Agreements will be construed in accord with the parties' intent, and the best evidence of the parties' intent is what their writing says.  If the agreement is set down in a clear and complete document, it will be enforced according to its terms. The Appellate Division notes that this rule is especially applicable where there are sophisticated parties who are negotiating at arms' length.

Student note:  The agreement's language is deemed to be clear and unambiguous where it is reasonably susceptible of only one meaning or interpretation, and extrinsic evidence may not be introduced to create an ambiguity in an otherwise clear document.

Case:  Marin v. Constitution Realty, LLC, NY Slip Op 04225 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Waiving an argument of duress.

Court holiday.

Failure to deny an allegation in a complaint.

Practice point:  The failure to deny an allegation in a complaint constitutes an admission to the truth of that allegation, pursuant to CPLR 3018[a].

Student note:  Admissions in pleadings are always in evidence for all purposes at the trial of an action.

Case:  DeSouza v. Khan, NY Slip 04085 (2d Dept. 2015)

Here is the decision.

Tuesday's issue:  Contract interpretation.

A landowner's duty to protect.

Practice point:  A public establishment's owner has no duty to protect patrons against unforeseeable and unexpected assaults.

Student note:  While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control.

Case:  Bisignano v. Raabe, NY Slip Op 04081 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Failure to deny an allegation in a complaint.

A contract action involving an online business promotion.

Practice point:  This is a putative class action based on defendants' alleged deception involving an online business promotion. In the promotion, defendants offered to provide to visitors to their website who entered their email address a $1 coupon toward the purchase of their products and further promotional materials. Plaintiff asserts that he and other visitors to the defendants' website provided their email address to defendants in response to this promotion, but did not receive the $1 coupon. The complaint alleges causes of action seeking damages for breach of contract and based on General Business Law § 349.

An advertisement for the sale of goods generally does not constitute an offer, which requires language plain and clear enough to establish the intended terms of the proposed contract. Here, defendants' promotion constituted only an invitation for offers, in light of the fact that the promotion expressly stated that the supply of coupons was "limited."

As plaintiff failed to raise a triable issue of fact, the Appellate Division affirmed the granting of defendants' cross motion for summary judgment.

Student note:  As a matter of law, the promotion did not create the power of acceptance for consumers and, consequently, no unilateral contract was formed.

Case:  Amalfitano v. NBTY, Inc., NY Slip Op 04077 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: A landowner's duty to protect.

The requirement of a shareholder's presuit demand.

Practice point:  The Appellate Division affirmed dismissal, as plaintiff failed to make a presuit demand or adequately allege that a demand was excused.  Pursuant to Business Corporation Law § 626(c), a plaintiff shareholder must plead, with particularity, the attempt to secure the initiation of such action by the board, or the reasons for not making such effort.

Demand is excused due to futility when a complaint alleges with particularity that: (1) a majority of the board of directors is interested in the challenged transaction; or (2)  the board of directors did not fully inform themselves about the challenged transaction to the extent reasonably appropriate under the circumstances; or (3) the challenged transaction was so egregious on its face that it could not have been the product of the directors' sound business judgment.

Student note:  The demand requirement also applies to members of New York limited liability companies.

Case:  Barone v. Sowers, NY Slip Op 04195 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A contract action involving an online business promotion.

Defeating summary judgment in a sidewalk defects action.

Practice point:  At deposition, plaintiff testified that she fell because her foot hit a bump in the sidewalk. Defendants moved for summary judgment on the ground that plaintiff's inability to identify the bump or defect in photographs shown to her at her deposition prevented her from being able to prove that her accident was proximately caused by a sidewalk defect for which they were responsible.

The Appellate Division denied summary judgment, finding that plaintiff's testimony was sufficient to demonstrate a causal nexus between a sidewalk defect and her fall. In order to defeat summary judgment, she was not required to prove precisely which defect in the sidewalk caused her to fall.

Student note:  In opposition to the motion, a police report, although hearsay, was considered along with the admissible evidence of plaintiff's deposition testimony.

Case:  Kovach v. PJA, LLC, NY Slip Op 03931 (1st Dept. 2015)

Here is the decision.

Tomorrow' s issue:  The requirement of a shareholder's presuit demand.