Taking a depositon by remote electronic means.

Practice point:  The Appellate Division determined that the motion court improvidently exercised its discretion in denying that branch of plaintiff's cross motion, which was made pursuant to CPLR 3103(a), for a protective order directing that his deposition be conducted by remote electronic means. The Appellate Division found that, in light of the evidence that the plaintiff's applications for a visa to return to the United States had been denied, and the evidence establishing that he presently was ineligible to be admitted to the United States, plaintiff demonstrated that traveling from China to the United States for his deposition or independent medical examination would cause undue hardship.

Student note:  Generally, the deposition of a party should take place within the county where the action is pending, pursuant to CPLR 3110[1]).  There is an exception to this rule if the party demonstrates that examination in that county would cause undue hardship.

Case:  Feng Wang v. A & W Travel, Inc., NY Slip Op 06312 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Collateral estoppel as a bar to a convicted defendant's relitigating liability in a civil action.

A quantum meruit claim is denied.

Practice point:  The Appellate Division reversed the motion court and denied that branch of plaintiff's motion which was for summary judgment on the cause of action seeking to recover damages against the defendant bank based on quantum meruit.

Plaintiff construction company entered into a construction contract with the individual defendant who was principal of the defendant owner of a commercial building. Pursuant to the contract, plaintiff was to furnish all material and perform all work necessary to renovate the owner's building for a price of $4,200,000. In order to pay for the work, the owner obtained a construction loan from the bank, which was secured by a mortgage on the property. Pursuant to the agreement between the bank and the owner, the bank disbursed money from the loan directly to plaintiff in installments on proof of completion of certain stages of work, but kept 10% of all such funds to be disbursed to plaintiff when the project was complete.  Under the loan agreement, in the event of the owner's default, the bank was entitled to keep all undisbursed funds from the loan.big

The owner defaulted and the bank commenced an action to foreclose on the property. The project was not completed, and plaintiff commenced this action against the owner and the bank asserting, among other things, a claim sounding in quantum meruit. The owner did not appear in the action.

The Appellate Division determined that plaintiff failed to establish its entitlement to judgment as a matter of law, as it failed to submit any evidence of the value of any services it may have performed which were accepted by the bank.  Plaintiff does not dispute that the sum of $416,566.50 represents the amount it was owed for work it performed pursuant to its contract with the owner and prior to any default by the owner, and it does not dispute that it previously received the other 90% of the payment owed for those services.  Plaintiff's evidence that the bank retained the sum of $416,566.50, pursuant to the loan agreement between the bank and the owner, for work performed by the plaintiff prior to the owner's default, is not evidence of the value of any services accepted by the bank. Moreover, the remaining 10% of funds that were to be disbursed to plaintiff pursuant to the loan agreement when the project was complete are also not evidence of the reasonable value of services rendered which were accepted by the bank.

The bank established its prima facie entitlement to judgment as a matter of law dismissing the claim as against it through the submission of the construction contract between plaintiff and the owner, which specifically outlined the contractor's work on the project.  In opposition, plaintiff failed to raise a triable issue of fact.

Student note:  A plaintiff seeking to recover on a cause of action sounding in quantum meruit must demonstrate (1) the performance of services in good faith; (2) the acceptance of the services by the person to whom they are rendered; (3) an expectation of compensation therefor; and (4) the reasonable value of the services allegedly rendered.

Case:  Crown Constr. Bldrs. & Project Mgrs. Corp. v. Chavez, NY Slip Op 06310 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Taking a deposition by remote electronic means.

An assault by an intoxicated individual, and leave to amend.

Practice point:   To establish prima facie entitlement to judgment as a matter of law dismissing a complaint alleging an assault by an intoxicated individual, a defendant must establish either that it did not serve alcohol to the plaintiff's assailant while he or she was visibly intoxicated, or that its sale of alcohol to the assailant had no reasonable or practical connection to the assault.

Here, the Appellate Division determined that defendants failed to meet their burden, and affirmed the denial of defendants' motion.  Plaintiff alleges that he was assaulted by an intoxicated patron at approximately 1:30 a.m. at a bar owned by defendants. In support of their motion, defendants submitted a copy of plaintiff's deposition testimony in which he testified that his assailant was at the bar when he arrived around midnight or 12:30 a.m., and that, upon his arrival, his assailant had a glass in his hand and was visibly intoxicated.

Defendants also submitted the deposition testimony of the defendant who tended bar that night.  He testified that plaintiff's assailant was already in the bar when he started tending bar at 8 p.m., and that he eventually stopped serving the assailant hours later because the assailant was visibly intoxicated.

Student note:  The Appellate Division also affirmed the granting of plaintiff's cross motion for leave to amend the complaint to add a cause of action alleging a violation of the Dram Shop Act, codified at General Obligations Law § 11-101. The proposed amendment was neither palpably insufficient nor patently devoid of merit, pursuant to CPLR 3025[b].  In addition, there will be no undue prejudice or surprise to the defendants by virtue of the amendment.

Case:  Covert v. Wisla Corp., NY Slip Op 06308 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A quantum meruit claim is denied.

Denial of motiom for summary judgment, with leave to renew.

Practice point:  Plaintiff moved for summary judgment on the issue of liability approximately two months after joinder of issue and prior to the exchange of any discovery.  The Appellate Division affirmed the denial of the motion, with leave to renew after depositions of the parties.

Student note:  A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment, and the opposing party is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated, pursuant to CPLR 3212[f].

Case:  Brea v. Salvatore, NY Slip 06305 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  An assault by an intoxicated individual, and leave to amend.

A CPLR 1018 motion to substitute a nonparty as plaintiff, and to amend the caption accordingly.

Practice point:  The Appellate Division affirmation the granting of the motion based on plaintiff's submission of evidence that the note at issue was in Nationstar's possession, that the mortgage was assigned to Nationstar after the action was commenced, and that, therefore, Nationstar is the real plaintiff in interest.

Student note:  The determination to substitute or join a party pursuant to CPLR 1018 is within the discretion of the trial court.

Case:  Aurora Loan Servs., LLC v. Lopa, NY Slip Op 06303 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Denial of motion for summary judgment, with leave to renew.

Doctrine of primary assumption of risk.

Practice point:  Pursuant to the doctrine, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.  This includes risks associated with the construction of the playing surface and any open and obvious condition on it. However, participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

Student note:  Awareness of risk is not to be determined in a vacuum, but, rather, is to be assessed against the background of the skill and experience of the particular plaintiff.

Case:  Brown v. Roosevelt Union Free School Dist., NY Slip Op 06204 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A CPLR 1018 motion to substitute a nonparty as plaintiff, and to amend the caption accordingly.

A FOIL request and redaction.

Practice point:  Petitioner requested documents from the New York City Fire Department, pursuant to the Freedom of Information Law.  The Fire Department provided copies of the documents, but with numerous items of information redacted.  After an in camera inspection of unredacted copies, the Supreme Court directed the Department to provide petitioner with legible unredacted copies.

The Appellate Division affirmed, to the extent that it found that the Department failed to articulate a particularized and specific justification for any of the redacted information at issue, except for the residence addresses contained in the subject documents. It found that the Department's conclusory assertions that the redacted information, other than residence addresses, fell within a statutory exemption were insufficient to meet its burden of demonstrating that the requested information was exempt from disclosure.

However, the Appellate Division concluded that disclosure of the residence addresses would constitute an unwarranted invasion of personal privacy, as under the circumstances of this case, the privacy interests at stake outweigh the public interest in disclosure of that information.  It modified the judgment so as to permit redaction of the residence addresses.

Student note:  Under FOIL, government records are presumptively open for public inspection and copying unless they fall within a statutory exemption specified in Public Officers Law § 87(2).  The exemptions are narrowly construed in order to ensure maximum public access, and the burden rests on the agency to demonstrate that the requested material qualifies for exemption.  To meet its burden, the agency must articulate a particularized and specific justification for nondisclosure.

Case:  Matter of Villalobos v. New York City Fire Dept., NY Slip Op 06249 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Doctrine of primary assumption of risk.

The whistleblower statute and the underlying claims that gave rise to the complaint.

Practice point:  The Appellate Division was asked to decide the extent to which bringing an action under New York's whistleblower statute, codified at Labor Law § 740, bars the maintenance of other claims to redress the wrongful conduct that prompted the report of abuse resulting in the employer's retaliatory action.  The Appellate Division concluded that, based on the statute's purpose and the relief it affords, claims predicated on the statute are distinct from claims predicated upon the underlying tortious conduct identified by plaintiffs, and that, in this case, the causes of action for sexual harassment and negligence may go forward.

Student note:  The Appellate Division agreed with plaintiffs that the mere incorporation by reference of various allegations in the complaint alleging retaliation in the sexual harassment and negligence causes of action does not warrant a contrary conclusion.

Case:  Lee v. Woori Bank, NY Slip Op 06299 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A FOIL request and redaction.

A settlement is approved nunc pro tunc.

Practice point:  The Appellate Division reversed the Court of Claims' denial of claimant's motion for an order approving the settlement of a claim nunc pro tunc under Workers' Compensation Law § 29(5).

The Appellate Division determined that the record does not show that the delay in obtaining approval was attributable solely to the fault or neglect of claimant; indeed, the record supports the conclusion that the carrier unwittingly lulled claimant into believing that it was willing to waive claimant's failure to obtain timely consent or court approval of the settlement. In fact, said the Appellate Division, the carrier made payments to claimant for eight years without objection, after it was made aware of the facts and circumstances surrounding the settlement and claimant's medical condition.

Moreover, respondent, the Liquidation Bureau, suffered no demonstrable prejudice as a result of any delay attributable to claimant.

Student note:  A judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even in cases where the approval is sought more than three months after the date of the settlement, provided that the petitioner can establish that (1) the amount of the settlement is reasonable; (2) the delay in applying for a judicial order of approval was not caused by the petitioner's fault or neglect; and (3) the carrier was not prejudiced by the delay.

Case:  Amacio v. State of New York, NY Slip Op 06298 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: The whistleblower statute and the underlying claims that gave rise to the complaint.

A failed motion to dismiss the defense of undue influence.

Practice point:  The Appellate Division affirmed the denial of the motion in this action where petitioner, the executor of decedent's will, sought permission to pay himself a sum that decedent allegedly owed him. The debt is allegedly evidenced by a promissory note that decedent executed 10 days before he died.  The Appellate Division found that the record contains evidence that payment would benefit petitioner while rendering the estate insolvent, a result that would have been contrary to the decedent's estate plan. Moreover, the note and accompanying letter of instruction were prepared by petitioner's counsel as opposed to the decedent's own estate planning counsel. These factors, combined with the evidence of the decedent's deteriorating health, suffice to raise a triable issue of fact as to whether the note was the product of undue influence.

Student note:  The elements of undue influence are motive, opportunity, and the actual exercise of that undue influence.  As direct proof of undue influence is rare, its elements may be established by circumstantial evidence.

Case:  Matter of Kotick v. Shvachko, NY Slip Op 06011 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A sertlement is approved nunc pro tunc.

Family Court's subject matter jurisdiction.

Practice point:  Pursuant to Family Court Act § 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain prescribed acts that occur "between spouses or former spouses, or between parent and child or between members of the same family or household."

Pursuant to the statute, "members of the same family or household" include, among others, "persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time." (

Student note:  Family Court is a court of limited jurisdiction, constrained to exercise only those powers conferred upon it by the New York Constitution or by statute.

Case:  Matter of Cambre v. Kirton, NY Slip 06242 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A failed motion to dismiss the defense of undue influence.