A legal malpractice claim based on violation of a contract's non-disparagement provision.

Practice point:  The Appellate Division affirmed denial of defendant's motion to dismiss the complaint in this action where plaintiff alleges that he would not have lost his contractual right to certain deferred compensation if his attorneys had not acted negligently in speaking to newspaper, in violation of the non-disparagement provision of the contract. The Appellate Division found that these allegations state a cause of action for legal malpractice, and that defendant's documentary evidence fails to establish a defense as a matter of law.  As the motion court found, neither the arbitration award nor the subsequent opinions submitted by defendants unequivocally contradict plaintiff's claim that, but for defendants' alleged negligent conduct, he would not have lost his contractual benefit.

Student note:  It does not matter whether the arbitration decision was reached on the merits or under a procedural bar to considering the deferred compensation issue in the arbitration.

Case:  Barr v. Liddle & Robinson, LLP, NY Slip Op 00744 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Expert opinion testimony in a chiropractic malpractice action.

A lessee/sublessor's liability.

Practice point:  The Appellate Division reversed, and reinstated the complaint in this action which plaintiff commenced after he allegedly was injured when he slipped and fell on premises that had been leased by defendant, and then subleased to another corporate entity.  Defendant failed to establish, prima facie, that the nonparty sublessee assumed the exclusive obligation to maintain the premises, and that defendant, as lessee/sublessor, had no duty to maintain the premises.  Since defendant failed to meet its initial burden as the movant, it was not necessary to review the sufficiency of plaintiff's opposition papers.

Student note:  An out-of-possession landlord may be liable for injuries occurring on the premises if it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs.  However, where the premises have been leased and subleased and the subtenant assumes the exclusive obligation to maintain the premises, both the out-of-possession landlord and the out-of-possession lessee/sublessor will be free from liability for injuries to a third party caused by the negligence of the subtenant in possession.

Case:  Iturrino v. Brisbane S. Setauket, LLC, NY Slip Op 00480 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  A legal malpractice claim based on violation of a contract's non-disparagement provision.

Dismissal of a fraud claim.

Practice point:  Pursuant to CPLR 3016(b), where a cause of action is based upon fraud or aiding and abetting fraud, the circumstances constituting the wrong must be stated in detail.  The Appellate Division affirmed dismissal of the claim here, as the causes of action alleging fraud contained only bare and conclusory allegations, without any supporting detail.  Absent that detail, they failed to satisfy the statutory requirements.

Student note:   A cause of action to recover damages for fraud requires allegations of: (1) a false representation of fact, (2) knowledge of the falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) damages.

Case:  Doukas v. Ballard, NY Slip Op 00474 (2d Dept. 2016)

Here is the decision.

Monday's issue:  A lessee/sublessor's liability.

A double-parked vehicle, negligence, and proximate cause.

Practie point:  The Appellate Division reversed the motion court, and denied plaintiff's motion for partial summary judgment on the issue of liability in this action where plaintiff's vehicle was double-parked, in violation of 34 RCNY 4-08(f)(1), when it was struck by defendants' vehicle as that vehicle attempted to pass plaintiff's car. Plaintiff failed to show that his own negligence in double-parking his car in the traveling lane was not a proximate cause of the accident.

Student note:  The Appellate Division rejected, as a matter of law, plaintiff's assertion that the fact that his vehicle was double-parked merely furnished the occasion for the accident.

Case:  Brito v. RDJ Express Transp., NY Slip Op 00594 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Dismissal of a fraud claim.

CPLR 3408 and negotiating in good faith.

Practice point:  CPLR 3408 is a remedial statute, enacted in response to the 2008 mortgage crisis, which requires that the parties enter into and conduct negotiations in good faith. In this mortgage foreclosure action, the Appellate Division affirmed the denial of defendant's motion to dismiss  as a sanction for plaintiff's alleged failure to negotiate in good faith. The Appellate Division determined that the documentation defendant submitted in support of her motion did not establish that plaintiff failed to negotiate in good faith by refusing to accept defendant's proposal of a lump sum payment of in full satisfaction of the outstanding loan balance.

Student note:  The issue of whether a party failed to negotiate in good faith' within the meaning of CPLR 3408(f) will be determined by considering whether the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution.

Case:  Deutsche Bank Natl. Trust Co. v. Twersky, NY Slip Op 00473 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  A double-parked vehicle, negligence, and proximate cause.

Premature summary judgment motions.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion even though it was made before defendant produced a witness  for deposition.  Defendant established prima facie that plaintiff's slip and fall on ice was not due to any negligence on its part by submitting a departmental director's affidavit stating that defendant operated a bus route with a stop at the subject location but did not "own, manage, maintain, operate, or control any bus stops."  Plaintiff failed to make a showing that discovery might lead to relevant evidence supporting her claim that defendant owned or was responsible for removing snow and ice from the accident location.

Plaintiff could not argue that defendant breached a common carrier's duty to provide a safe means of ingress, because plaintiff did not plead this theory of liability in her notices of claim.

Case:  Cruz v. City of New York, NY Slip Op 00586 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  CPLR 3408 and negotiating in good faith.

Unjust enrichment claims and the statute of frauds.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss the unjust enrichment claim in this action to recover a finder's fee allegedly due plaintiff from the sale of certain assets belonging to a nonparty, and misappropriated by defendant. It is uncontested that the finder's fee was a matter of contract between plaintiff and the nonparty, and that plaintiff and defendant were not parties to a written agreement.

Plaintiff's claim is not, as defendant contends, barred by the statute of frauds, at  General Obligations Law § 5-701[a][10]. The Court of Appeals has upheld an unjust enrichment claim in the absence of a writing, and so the statute of frauds is inapplicable and irrelevant to the analysis.

Student note:  An unjust enrichment claim is founded on a quasi-contract theory of recovery and is imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned.

Case:  Winthrop v. Rosenthal & Rosenthal, Inc., NY Slip Op 00582 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Premature summary judgment motions.

Disclosure regarding an expert's anticipated testimony.

Practice point:  The Appellate Division affirmed the denial of that branch of plaintiff's motion to compel defendants to provide further disclosure regarding the anticipated testimonies of their expert witnesses.  Defendants' expert disclosure statements sufficiently disclosed in reasonable detail the subject matter and the substance of the facts and opinions on which the experts were expected to testify, and a summary of the grounds for their opinions.

Student note:  There is no requirement that the expert set forth the specific facts and opinions upon which he or she is expected to testify, but, instead, only the substance of those facts and opinions.

Case:  Conway v. Elite Towing & Flatbedding Corp., NY Slip Op 00470 (2d Dept. 2016)

Here is the decision.

Monday's issue:  Unjust enrichment claims and the statute of frauds.

Appellants who are not aggrieved by the order being appealed.

Practice point:  Where the order does not affect the rights of an appealing party, that party is not aggrieved by the order and the appeal must be dismissed.

Student note:  A party is aggrieved by an order when it directly affects that party's individual rights. A party is not aggrieved by an order which does not grant relief the party did not request.

Case:  Barrett v. Dennis Lounsbury Bldrs., Inc., NY Slip Op 00319 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Disclosure regarding an expert's anticipated testimony.

Comity, and foreign divorce decrees.

Practice point: Although not required to do so, New York courts generally will recognize the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of other States.  Comity extends to upholding the validity of a foreign divorce decree, absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York.

Student note:   New York courts will generally recognize all the provisions of the decree, including any agreement which may have been incorporated therein.

Case:  Badawi v. Alesawy, NY Slip Op 00317 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Appellants who are not aggrieved by the order being appealed.

Sanctions, and frauds on the court.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion, made only one day after the court, at oral argument, denied a motion made by plaintiff seeking nearly identical relief. The evidence does not support a finding of civil contempt against defendant, as there is no showing that defendant violated an order of the court, pursuant to Judiciary Law § 753[A].

Neither was  defendant's cross motion seeking sanctions frivolous, pursuant to 22 NYCRR 130-1.1. Although the motion court denied defendant's cross motion, it correctly admonished plaintiff for her multiple after-hours telephone calls, and for her communications threatening to report defense counsel to the disciplinary committee unless his firm withdrew as counsel.

Defendant did not commit fraud upon the court by providing it with a copy of a redacted email from plaintiff. The redactions were obvious and involved settlement negotiations.  In addition, defendant obtained an unredacted copy of the email for the court's review and read almost all of the email into the record at oral argument, except for the proffered settlement amounts.

Student note:  The Appellate Division found that discovery sanctions, such as striking defendant's answer, are unwarranted, pursuant to CPLR 3126. Although defendant failed to appear at a nonparty deposition, it contacted plaintiff in advance and advised her that the witness could not appear on the date she had selected.

Case:  Pezhman v. Chanel, Inc., NY Slip Op 00427 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Comity, and foreign divorce decrees.