Statute of limitations in a breach of fiduciary duty action.

Practice point:  New York law does not provide a single statute of limitations for breach of fiduciary duty claims.  Instead, the applicable limitations period depends on the substantive remedy that the plaintiff seeks. Where the remedy sought is purely monetary in nature, courts construe the suit as alleging an injury to property, within the meaning of CPLR 214(4), which has a three-year limitations period.  However, if the relief sought is equitable in nature, the six-year limitations period of CPLR 213(1) applies.

Student note:  If a fraud allegation is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213(8).  However courts will not apply the fraud statute of limitations if the fraud allegation is only incidental to the claim asserted, figuring that, otherwise, a fraud allegation could be used as a means to litigate stale claims.  So, where a fraud allegation is not essential to the pleaded cause of action, except as an answer to an anticipated defense of statute of limitations, courts will look for the reality and essence of the action and not its mere name.

Case:  DiRaimondo v. Calhoun, NY Slip Op 07002 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A claim of negligent infliction of emotional distress in a family dispute.

Summary judgment on liability in a personal injury action.

Practice point:  The Appellate Division reversed the motion court and granted plaintiff's motion in this action for damages for personal injuries sustained when plaintiff was struck by an ambulette.  The Appellate Division found that plaintiff established that she waited for the pedestrian signal to be in her favor prior to entering the crosswalk, and that she exercised due care by looking in both directions  and for any vehicles turning left before she entered the crosswalk. While crossing at a steady normal pace, and having almost completed crossing in the crosswalk, plaintiff was struck by the vehicle operated by the defendant driver, which came from behind plaintiff and failed to yield the right-of-way.  In opposition, defendants failed to raise a triable issue of fact.

Student note:  The Appellate Division also found that, contrary to defendants' contentions, the motion was not premature.  Defendants failed to demonstrate that additional discovery may lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of plaintiff.  The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered by further discovery is an insufficient basis for denying the motion.

Case:  Chou v. Ocean Ambulette Serv., Inc., NY Slip Op 06876 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Statute of limitations in a breach of fiduciary action.

Leave to amend, pursuant to CPLR 3012(b).

Practice point:  A party seeking leave to amend a pleading need not make an evidentiary showing of merit, and leave will be granted unless such insufficiency or lack of merit is clear and free from doubt.

Student note:  Leave to amend or supplement a pleading is to be "freely given," pursuant to the express terms of the statute.  In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit.

Case:  Calamari v. Panos, NY Slip Op 06875 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment on liability in a personal injury action.

A school's common law duty to supervise.

Practice point:  A school owes a common-law duty to adequately supervise its students.  However, to impose liability based on inadequate supervision, a plaintiff's injuries must have been foreseeable and proximately related to the absence of adequate supervision.

Student note:  Schools are not insurers of safety because they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another.

Case:  Binani v. City of New York, NY Slip Op 06871 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to amend, pursuant to CPLR 3025(b).

A legal malpractice claim.

Practice point:  The Appellate Division affirmed the granting of summary judgment to the attorney-defendants in this action where the plaintiffs alleged that the attorney-defendants represented them in a real estate venture in which the plaintiff loaned the individual defendant $600,000, and that the plaintiffs sustained damages when the the individual defendant failed to repay the loan. In support of their motion for summary judgment dismissing the complaint, the attorney-defendants established, prima facie, that even if they failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, any such failure was not a proximate cause of the plaintiffs' alleged damages when the individual defendant did not repay the loan.

Student note:  In an action to recover damages for legal malpractice, a plaintiff must demonstrate 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 this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence. To prevail on a summary judgment motion, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements.

Case:  Antonelli v. Guastamacchia, NY Slip Op 06870 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A school's common law duty to supervise.

A negligent security claim.

Practice point:  The Appellate Division modified the Supreme Court's order and denied defendant's motion for summary judgment as to plaintiffs' negligence causes of action.  The Appellate Division found that there are triable issues of fact as to whether defendants breached their duty to take minimal security precautions to protect plaintiff's decedent from the criminal acts of third-party intruders and as to whether any such failure was a proximate cause of the attack on her. Viewing the evidence in the light most favorable to plaintiffs, there are questions of fact as to whether the lock on the building's front door, through which the assailant entered, was broken. In addition, evidence of a history of prior crimes, including assaults, in and around the building raises an issue of fact as to whether defendants' alleged negligence was a proximate cause of the attack.

The Appellate Division also found that the court abused its discretion in denying the portion of plaintiffs' cross motion seeking to preclude the deposition testimony of the assailant, who improperly terminated the deposition, thereby depriving plaintiffs of a full and fair opportunity to conduct their cross-examination.

Student note:  It was not improper for the court to address the parties' motions, made before decedent's death, in the order on appeal.  Although the court recalled and vacated its previous order, pursuant to  CPLR 1015), there was no need to renew the motions that were previously made.

Case:  Gonzalez v. 231 Ocean Assoc., NY Slip Op 06868 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A legal malpractice claim.

Labor Law § 200.

Practice point:  To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to supervise or control the methods or materials of a plaintiff's work. Where a plaintiff's injuries arise not from the manner in which the work was performed but from a dangerous condition on the premises, a defendant may be liable under the statute if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition. Where a plaintiff's injures are alleged to have been caused by defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment dismissing causes of action alleging a statutory violation must address the proof applicable to both of the foregoing liability standards.  The movant will prevail only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard.

Student note:  Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to maintain a safe construction site.

Case:  Bennett v. Hucke, NY Slip Op 06771 (2d Dept. 2015)

Here is the decision.

Monday's issue:  A negligent security claim.

Charging a jury on comparative fault.

Practice point:  In this action for injuries allegedly sustained at the construction site by plaintiff's decedent,  the Appellate Division found that the trial court erred in charging the jury on comparative fault. Although defendants argued that the extensive debris and garbage on the floor could have easily been avoided, the jury's verdict established that defendants were responsible for keeping the area clear.  Moreover, the decedent was not obligated to clear the floor of garbage and there was no clear path that he could use. The charge was not warranted because there was no evidence of culpable conduct on decedent's part.

Student note:  The charge should be given if, based on the evidence presented at trial, there is a valid line of reasoning and permissible inferences from which rational persons can draw a conclusion of the plaintiff's negligence.

Case:  Kutza v. Bovis Lend Lease LMB, Inc., NY Slip Op 06753 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Labor Law  § 200.

Motions to dismiss for failure to state a claim.

Practice point:  On the CPLR 3211(a)(7) motion, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference.  Where evidentiary material is submitted and considered, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, the claim will not be dismissed.

Student note:  The court may consider any factual submissions made in opposition to a motion to dismiss in order to remedy pleading defects, pursuant to CPLR 3211[c].

Case:  Barouh v. Law Offs. of Jason L. Abelove, NY Slip Op 06769 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Charging a jury on comparative fault.

Preclusion of testimony as cumulative.

Practice point:  In this worksite injury case, the Appellate Division found that the testimony of plaintiff's wife and his coworker should not have been precluded, as it would have added to the testimony of other witnesses.  The coworker saw plaintiff fall, and his testimony as to the impact to plaintiff's foot could have been highly probative of plaintiff's claim that the continuing pain in his foot was caused by the accident and did not pre-exist it, as defendants argued. Further, the coworker could have testified as to the particular duties carried out by plaintiff as a heavy-construction carpenter, which would have supported plaintiff's position that as a result of his injury he could no longer perform that kind of work. Plaintiff testified about his job duties, but the coworker's status as a disinterested witness would have given his testimony added value to the jury.

The proffered testimony of plaintiff's wife was not likely to be cumulative, notwithstanding her not having asserted a derivative claim. The wife had a unique perspective on her husband's condition before and after the accident, and could have assisted the jury in further understanding the extent of his disability and of his pain and suffering.

Student note:  Testimony is properly precluded as cumulative when it would neither contradict nor add to the testimony of other witnesses.

Case:  Segota v. Tishman Constr. Corp. of N.Y., NY Slip Op 06764 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Motions to dismiss for failure to state a claim.

A client's dissatisfaction with a lawyer's stratetic choice.

Practice point:  The defendant law firm was entitled to summary judgment, as a matter of law, by demonstrating that its recommendation that plaintiffs execute a consent agreement was a reasonable strategic decision.  Defendant also demonstrated that the recommendation was made after extensive discussions with the plaintiffs, who agreed to the course of action.  In opposition, the plaintiffs raised no issue of triable fact that the recommendation was an unreasonable course of action that constituted legal malpractice.

Student note:  As a matter of law, a client's present dissatisfaction with a lawyer's strategic choice, without more, is not actionable.

Case:  Tantleff v. Kestenbaum & Mark, NY Slip Op 06720 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Preclusion of testimony as cumulative.