An award of attorneys' fees.

Practice point:  The Appellate Division affirmed the trial court's award of attorneys' fees and costs to plaintiffs, the prevailing parties in this gender-based employment discrimination action. The court was not required to reduce fees to reflect a relative lack of success, as there is no per se rule against awarding fees in excess of damages recovered, and fees may be appropriate where a party recovers only nominal damages.

Student note:  A court may discount senior attorney hours where they constitute a disprorportionate amount of time spent on the matter. While a court may award costs in the absence of receipts, the court is entitled to discount those costs it deems to be unreasonable.

Case:  Hernandez v. Kaisman, NY Slip Op 03424 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  The doctrine of res judicata.

Rear-end collisions and an inference of negligence.

Practice point:  A rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision. Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation.

Student note:  Pursuant to Vehicle and Traffic Law § 1129[a], "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."

Case:  Hartfield v. Seenarraine, NY Slip Op 03137 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  An award of attorneys' fees.

Labor Law and accidents outside New York State.

Practice point:  Plaintiff was injured by an unguarded saw blade while working at a site located in New Jersey. At the time, he was aware that the part he was fabricating was going to be installed at a Manhattan construction site owned and operated by defendants.  Plaintiff filed several claims grounded in Labor Law §§ 200, 241[6]. The Appellate Division affirmed dismissal, as the protection afforded by the Labor Law does not extend to accidents that occurs outside New York State.

Student note:  The Labor Law's protection does not apply to out-of-state accidents even if all parties are New York domiciliaries.

Case:  Osborn v. 56 Leonard LLC, NY Slip Op 03246 (1st Dep't 2016)

Here is the decision.

Monday's issue: Rear-end collisions and an inference of negligence.

Hearsay, admissibility, and hospital reords.

Practice point:  A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule if the entry is germane to the diagnosis or treatment of the patient.

Student note:  If the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is evidence connecting the party to the entry.

Case:  Berkovits v. Chaaya, NY Slip Op 03131 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Labor Law and accidents outside New York State.

Extending time and law office failure.

Practice point:  To extend the time to answer the complaint and to compel the plaintiff to accept an otherwise untimely answer, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action.  The Appellate Division determined that the Supreme Court providently exercised its discretion in rejecting the defendant's unsubstantiated explanation that lawyers he consulted, but apparently did not retain, had advised him not to answer the complaint. A defendant's claim that his attorney apparently made an erroneous assumption regarding the need to answer the complaint does not constitute a valid excuse. At most, the advice, and the defendant's decision to follow it, is a misguided strategy, not law office failure.

Student note:  While a court has the discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005), a conclusory, undetailed, and uncorroborated claim of law office failure is insufficient.

Case:  Bank of N.Y. Mellon v. Colucci, NY Slip Op 03129 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Hearsay, hospital records, and admissibility..

The termination of a forum selection clause.

Practice point:  The mere termination of a contract containing the clause does not mean that the clause is without effect .In order for a party to disregard it when the contract is terminated, there must be a clear manifestation of the parties' intent to terminate the clause along with the contract. The best evidence of what the parties intended is the plain meaning of the contract.

Student note:  Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes, particularly those involving international business agreements.

Case:  Garthon Bus. Inc. v. Stein, NY Slip Op 03102 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Extending time and law office failure.

Primary assumption of the risk.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion in this action where plaintiff seeks damages for personal injuries sustained while driving a go-kart at a track owned and operated by defendant. The Appellate Division found that the Supreme Court improvidently exercised its discretion in declining to consider the affidavit of plaintiff's expert on the ground that the expert was not disclosed until after the note of issue was filed, as there was no evidence that plaintiff's delay in retaining the expert or in serving the expert information was intentional, willful, or prejudicial to defendant, pursuant to CPLR 3101[d][1][i]. Nevertheless, the affidavit failed to raise a triable issue of fact. While the expert alleged that the go-kart did not comply with safety guidelines promulgated by the American Society for Testing and Materials, those guidelines are nonmandatory, and insufficient to raise a triable issue of fact as to whether defendant was negligent.

Student note:  Defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that, under the doctrine of primary assumption of the risk, plaintiff assumed the risks inherent in driving a go-kart, including the risk of sustaining injuries in the manner in which plaintiff did in this case.  In opposition, plaintiff failed to raise a triable issue of fact as to whether defendant unreasonably increased the risk of injury above and beyond the usual dangers inherent in the sport.

Case: Augustin v. Grand Prix N.Y. Racing, LLC, NY Slip Op 02948 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  The termination of a forum selection clause.

A bus operator's duty of care.

Practice point:  A common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area.

Student note:  A common carrier is subject to the same duty of care as any other potential tortfeasor, namely, reasonable care under all of the circumstances of the particular case.

Case:  Amin v. County of Suffolk, NY Slip Op 02947 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Primary assumption of the risk.

The common interest privilege.

Practice point:  Under this doctrine, a third party may be present at the communication between an attorney and a client without destroying the privilege if the communication is for the purpose of furthering a nearly identical legal interest shared by the client and the third party.

Student note:  The common interest privilege serves as an exception to the general rule that the presence of a third party at a communication between counsel and client will waive a claim that a communication is confidential.

Case:  Levy v. Arbor Commercial Funding, LLC, NY Slip Op 03063 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A bus operator's duty of care.

Derivative suits and the futility of making a demand of the board.

Practice point:  Business Corporation Law § 626(c) provides that in a shareholders' derivative suit, "the complaint shall set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board or the reasons for not making such effort."  To overcome a motion to dismiss for failure to plead demand futility, a plaintiff must have alleged with particularity that (1) a majority of the directors are interested in the transaction, or (2) the directors failed to inform themselves to a degree reasonably necessary about the transaction, or (3) the directors failed to exercise their business judgement in approving the transaction.

Student note:  The Appellate Division did not consider plaintiff's argument because it was made for the first time on appeal, and it contradicted the allegations in his complaint.

Case:  Goldstein v. Bass, NY Slip Op 03060 (1st Dep't 2016)

Here is the deision.

Tomorrow's issue:  The common interest privilege.

An assault on Transit Authority property.

Practice point:  The Appellate Division affirmed the granting of defendant's motion for summary judgment in this action to recover damages for personal injuries. The defendant-Transit Authority demonstrated that it had no special relationship with the plaintiff, thereby establishing its prima facie entitlement to judgment as a matter of law, and, in opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's claims that a Transit employee observed another passenger injuring her on Transit property and failed to summon emergency assistance in a timely manner from a position of safety is based on speculation and conjecture, and thus, is insufficient to defeat the motion.

Student note:  Generally, the Transit Authority owes no duty to protect a person on its premises from assault by a third person, absent facts establishing a special relationship between the agency and the person assaulted. A "special relationship" requires justifiable reliance by a plaintiff upon an affirmative undertaking by the municipal defendant to act on the plaintiff's behalf.  However, a Transit employee's unreasonable failure to summon aid upon observing an injury being inflicted from a vantage point offering both safety and the means to summon help without danger may fall within the narrow range of circumstances which could be actionable.

Case:  Jacobs v. Transit Authority, NY Slip Op 02776 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Derivative suits and the futility of making a demand of the board.