Setting up a supplemental needs trust.

Practice point:  Plaintiff's daughter, now the decedent, had entered into a settlement with the MTA, resolving a personal injury action. Upon entering into the settlement, decedent, who was receiving supplemental security income, Medicare and Medicaid due to several preexisting conditions, petitioned the court to approve and authorize the creation of a supplemental needs trust, into which the settlement proceeds would be transferred.  The petition was granted, and the MTA sent its portion of the settlement to decedent's counsel, who placed the funds in escrow pending completion of the documents creating and funding the trust.  However, decedent died before she had the opportunity to formally execute the trust documents.  Defendant-claimant, which was to be the remainderman of the trust, moved for the principal and interest that remains in the trust.

The motion court denied the motion, because decedent's failure to complete the formalities associated with setting up the trust prior to her death was fatal to the trust's existence, and the Appellate Division affirmed. Neither decedent nor the putative trustee executed or acknowledged the proposed trust agreement, and the trust was never properly funded with the settlement proceeds. Accordingly, a valid trust was never created.

Student note:  The proposed trust is a "lifetime trust" within the meaning of the EPTL, and therefore it must comply with the formality requirements of EPTL 1-2.20.

Case:  Gaines v. City of New York, NY Slip Op 02294 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A motion to dismiss, and amending a bill of particulars.

The presumed constitutionality of a statute.

Practice point:  The Appellate Division found that the motion court properly determined that plaintiff failed to demonstrate that Family Court Act § 517 was unconstitutional to the extent that it placed a limitation on the time when a child could seek a paternity test, given the state's legitimate interest in securing support for a child from those legally responsible. The limitations period is not arbitrary and capricious in that, by age 21, a parent may not be legally responsible for support.

Plaintiff also failed to provide binding legal authority for his claim that he had a constitutional right to know the identity of his biological father, given the strong presumption that his mother's husband, who was listed on his birth certificate, is his father.

Student note:  A statute is presumed constitutional, and that presumption can only be overcome by proof that is persuasive beyond a reasonable doubt.

Case:  Winkler v. Sherman, NY Slip Op -2142 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Setting up a supplemental needs trust.

A successful motion for leave to amend.

Practice point:  The Appellate Division affirmed the granting of the cross motion for leave to amend, as the proposed amendments were not palpably insufficient or patently devoid of merit, and they did not prejudice or surprise the defendants.  Without alleging new or different facts, the proposed amendments merely sought to add new theories of recovery.

Student note:  Pursuant to CPLR 3025(b), leave to amend a pleading will be freely given, provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.  The motion court will not examine the merits of the proposed amendment unless its insufficiency or lack of merit is clear and beyond any doubt.

Case:  Gallagher v. 109-02 Dev., LLC, NY Slip Op 02050 (2d Dep't 2016)

Here is the decision.

Monday's issue: The presumed constitutionality of a statute.

Perfecting an appeal by the appendix method.

Practice point:  The appeal was dismissed because the appellant failed to provide the Appellate Division with an appendix containing copies of the pleadings, the motion papers, and all of the affidavits and exhibits necessary to review the order appealed from.

Student note:  Pursuant to CPLR 5528[a][5] and 22 NYCRR 670.10-b[c][1], an appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits.

Case: Daniels v. Donohue, NY Slip Op 02049 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  A successful motion for leave to amend.

An account stated.

Practice point:  To establish its prima facie entitlement to judgment as a matter of law to recover on an account stated, a plaintiff must show that the defendant received the plaintiff's account statements for payment and retained these statements for a reasonable period of time without objection.

In the case of existing indebtedness, the agreement may be implied as well as express. An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account.

Student note:  An account stated is an agreement between the parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due.

Case:  Cach, LLC v. Aspir, NY Slip Op 02046 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Perfecting an appeal by the appendix method.

Leave to amend an answer.

Practice point:  The Appellate Division modified the order denying defendant's summary motion to dismiss in this action to recover damages for medical malpractice and lack of informed consent, granting leave to amend the answer to include the affirmative defense of discharge in bankruptcy.  The defense is neither patently insufficient nor palpably devoid of merit, and there would be little or no prejudice resulting from any delay in granting leave to amend.

Student note: Even when a defense is waived under CPLR 3211(e), it can be interposed in an answer amended by leave of court pursuant to CPLR 3025(b), as long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay, and is not palpably insufficient or patently devoid of merit.

Case:   Dixon v. Chang, NY Slip Op 01797 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  An account stated.

Theories of liability and supplemental bills of particular in a medical malpractice action.

Practice point:  Defendants made a prima facie showing, via expert opinion, that they did not depart from good and accepted medical practice in allowing plaintiff-mother to continue her pregnancy to term and inducing delivery in the 41st week, and that there was no causal connection between any alleged departure and the plaintiff-infant's condition. However, in opposing defendants' summary judgment motion, plaintiffs raised triable issues of fact, and the Appellate Division affirmed denial of defendants' motion. Plaintiffs did not assert a new theory of liability in their opposition papers. Plaintiffs' expert asserted only that the departures from good and accepted medical practice may have occurred as far back as the mother's 37th week of pregnancy, when she started showing signs of gestational hypertension, and while she was already under defendants' care.

Student note:  Although the initial bill of particulars stated the dates of the alleged malpractice]incorrectly, the supplemental bill made clear that the allegations related to the treatment of the mother before delivery.  In addition, the expert disclosure also clarified the dates in issue.

Case:  Destiny H. v. Bronx Lebanon Hosp., NY Slip Op 02033 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Leave to amend an answer.

An attorney's charging lien.

Practice point:  The attorney fulfilled an obligation under the retainer agreement to obtain a judgment on the plaintiff's behalf, and the judgment included a specific award of attorneys' fees and expenses. The Supreme Court determined that those fees were reasonable based upon the amount of time the attorney spent on the case, and the Appellate Division found no basis to vacate the attorney's charging lien against the award of attorneys' fees and expenses specified in the judgment.

However, the Appellate Division found that the plaintiff submitted evidence in support of its contention that it thereafter discharged the attorney for cause, owing to his delay and recalcitrance in seeking enforcement of the judgment. The attorney failed to adduce evidence to raise a triable issue of fact to rebut the plaintiff's claim. Therefore, the Appellate Division determined that the Supreme Court should have granted that branch of the plaintiff's motion which was to vacate a charging lien pursuant to Judiciary Law § 475 for any sums recovered from the defendants in excess of the fees originally awarded.

Student note: A client has an absolute right, at any time, to terminate the attorney-client relationship by discharging the attorney, with or without cause. If an attorney's representation terminates on mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains the right to enforce the statutory lien. If the discharge is for cause, the attorney has no right to compensation, notwithstanding a specific retainer agreement. If there are conflicting claims as to whether an outgoing attorney was discharged with or without cause, there must be a hearing to resolve the dispute.

Case:  CPMI, Inc. v. Kolaj, NY Slip Op 01795 (2d Dep't 2016)

Here is the decision.

Monday's issue: Theories of liability and supplemental bills of particulars in a medical malpractice action.

A court's sua sponte dismissal of a claim.

Practice point:  The Appellate Division reversed and remitted, before a different judge, finding that the Supreme Court erred in, sua sponte, directing the dismissal of the plaintiff's complaint and discharge of the notice of pendency against the property at issue for lack of standing. The Appellate Division said that the Supreme Court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint and discharge of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing. In any event, lack of standing is not a jurisdictional defect and does not warrant a court's sua sponte dismissal of a complaint.

Student note:  A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances warrant dismissal.

Case:  Consumer Solutions, LLC v. Charles, NY Slip Op 01794 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  An attorney's charging lien.

Absolute privilege as to statements made in a judicial proceeding.

Practice point:  The Appellate Division affirmed the granting of the motion to dismiss the complaint which alleges that the defendant, who was counsel for the executor in a probate proceeding, made allegedly defamatory statements in an affirmation in support of a motion to compel a continued examination pursuant to Surrogate's Court Procedure Act § 1404. The statements concerned the very subject of the probate proceeding, namely, the contested last will. Therefore, the statements were absolutely privileged as a matter of law, and cannot be the basis for a defamation action.

Student note:  An absolute privilege is accorded statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court, provided that the statements are n some way pertinent to the issue in the proceeding . The pertinency standard is extremely liberal and extends to anything that may possibly or even plausibly be relevant.  The privilege attaches to all statements made in or out of court,  regardless of the motive for which they were made.

Case:  Brady v. Gaudelli, NY Slip 01793 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  A court's sua sponte dismissal of a claim.

A fall from a ladder and a Labor Law § 240(1) cause of action.

Practice point:  The Appellate Division affirmed that plaintiff made a prima facie showing of entitlement to summary judgment as to liability by submitting his own testimony that the ladder on which he was standing to perform his work wobbled, and that both he and the ladder fell to the ground as he descended it to figure out why it had wobbled.

Student note:  Plaintiff was not required to offer proof that the ladder was defective.

Case:  Ocana v. Quasar Realty Partners L.P., NY Slip Op 01902 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Absolute privilege as to statements made in a judicial proceeding.