A motion to dismiss a claim for sexual orientation-based discrimination in violation of the New York City Human Rights Law.

Practice point:  The Appellate Division modified the order granting the City's motion to dismiss pursuant to CPLR 3211(a)(7), reinstating plaintiff's claims relating to facially timely allegations, as well as his claim relating to the alleged ongoing policy of preventing him from searching inmates.

The Appellate Division found that plaintiff, a correction officer and captain during the relevant time periods, has adequately alleged a claim for sexual orientation-based discrimination in violation of the New York City Human Rights Law. Plaintiff's allegations that he is an openly gay man and was qualified for the positions of correction officer and captain meet the first two elements of his discrimination claim. Plaintiff's allegations that he was written up, twice suspended, and ultimately demoted meet the third element of disadvantageous treatment. Defendant's argument that plaintiff has not alleged that he was treated worse than similarly situated captains - as opposed to correction officers - is unavailing. Suspension and demotion are, prima facie, adverse employment actions. Defendant's argument is, effectively, that those actions were warranted by plaintiff's conduct while a captain, but this argument goes more properly to the second leg of the McDonnell Douglas burden-shifting framework, namely, rebuttal of a prima facie claim of employment discrimination by showing a legitimate, nondiscriminatory reason for the adverse action. It is misplaced at this early procedural stage.

Case:  James v. City of New York, NY Slip Op 07400 (1st Dep't November 10, 2016)

Here is the decision.

Tomorrow's issue: Resolving contractual ambiguity.

A motion to vacate an arbitration award.

Practice point:  The Appellate Division affirmed the denial of the petition seeking to vacate an arbitration award terminating petitioner's employment and dismissing the article 75 proceeding brought pursuant to CPLR article 75.

 The award is not subject to a heightened level of judicial scrutiny, as it was held pursuant to a voluntarily-entered collective bargaining agreement.  Petitioner failed to demonstrate that the award should be vacated under the applicable standard of review at CPLR 7511[b][1]. Under that standard, courts are not permitted to review an arbitrator's findings of fact, including credibility determinations.

Case:  Matter of Noel v. Bianco, NY Slip Op 07398 (1st Dep't November 10, 2016)

Here is the decision.

Tomorrow's issue:  A motion to dismiss a claim for sexual orientation-based discrimination in violation of the New York City Human Rights Law.

Summary judgment on account stated and quantum meruit claims.

Practice point:  The Appellate Division affirmed denial of plaintiff's motion for partial summary judgment dismissing defendant's counterclaims for account stated and quantum meruit.

Plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law, as it submitted no evidence, testimonial or otherwise, that it did not receive the invoices at issue. In addition, there are issues of fact as to whether plaintiff's protests regarding defendant's work, including the commencement of this action, related to any such invoice or were made in a reasonable time.  On the quantum meruit claim, there are issues of fact regarding whether defendant had agreed to adopt the contract of its predecessor and whether defendant performed any services not covered by that contract.

Student note:  As plaintiff did not meet its burden, the court did not address the discovery concerns raised by defendant as a basis for denial of the motion.

Case:  GPI Entertainment, LLC v. Aviv Façade Solutions, NY Slip Op 07121 (1st Dep't November 1, 2016)

Here is the decision.

Tomorrow's issue:  A motion to vacate an arbitration award.

Court holiday.

He jests at scars that never felt a wound.
                             Romeo and Juliet, Act II, Scene II

Appellate review of a nonjury trial.

Practice point:  In reviewing a determination rendered after a nonjury trial, the Appellate Division's power is as broad as that of the trial court, and the Appellate Division may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing the witnesses and hearing the testimony.

Case:  Bryant v. Broadcast Music, Inc., NY Slip Op 06996 (2d Dep't October 26 2016)

Here is the deision.

Monday's issue:  Summary judgment on account stated and quantum meruit claim.

Summary judgment in a rear-ended vehicle accident.

Practice point:  The motion court denied plaintiffs' motion for partial summary judgment on the issue of liability, with leave to renew upon completion of all parties' depositions, and the Appellate Division reversed. Plaintiffs established entitlement to judgment as a matter of law by submitting evidence showing that they were injured when defendants' vehicle hit their stopped vehicle from behind as they waited at a red light.  Defendants did not provide a non-negligent explanation for why their vehicle rear-ended plaintiffs' vehicle. They did not demonstrate the need for plaintiffs' depositions, since any information as to why their car rear-ended plaintiffs' vehicle reasonably is within defendants' own knowledge.

Case:  Castaneda v. DO&CO N.Y. Catering, Inc., NY Slip Op 07118 (1st Dep't November 1, 2016)

Here is the decision.

Tomorrow's issue: Appellate review of a nonjury trial.

Court holiday.

Tomorrow's issue:  Summary judgment and discovery in a rear-ended vehicle accident.

Denial of a cross-motion to strike the answer.

Practice point:  The Appellate Division affirmed the denial of the motion in this medical malpractice action, as plaintiffs failed to demonstrate that the allegedly spoliated X-ray was ever taken.  Even if there were an X-ray, plaintiffs failed to establish that it represented a key piece of evidence, especially considering defendants' expert's opinion that it would not have yielded any useful diagnostic information.

Case:  Liburd v. St. Joseph's Med. Ctr., NY Slip Op 07117 (1st Dep't November 1, 2016)

Here is the decision.

Wednesday's issue: Summary judgment and discovery in a rear-ended vehicle accident.

Summary judgment in a trip-and-fall action.

Practice point:  A defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the fall. A plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Case:  Baldasano v. Long Is. Univ., NY Slip Op 06995 (2d Dep't October 26, 2016)

Here is the decision.

Monday's issue:  Denial of a cross-motion to strike the answer.

Moving for a discretionary change of venue.

Practice point:  Pursuant to CPLR 510(3), the movant must demonstrate that the change will promote the convenience of material witnesses and the ends of justice. The movant must set forth (1) the names, addresses, and occupations of the prospective witnesses; (2) the facts to which the witnesses will testify at trial, so that the court may judge whether the proposed evidence is necessary and material; (3) a statement that the witnesses are willing to testify; and (4) a statement that, absent the change, the witnesses would be greatly inconvenienced.

Case:  Ambroise v. United Parcel Serv. of Am., Inc., NY Slip Op 06993 (2d Dep't October 26, 2016)

Here is the decision.

Tomorrow's issue:  Summary judgment in a trip-and-fall action.

The first-to-file rule in a legal malpractice action.

Practice point:  The Appellate Division found that the motion court improvidently exercised its discretion in declining to dismiss the claim for a declaratory judgment against defendant since there is another action pending between the parties for the same cause of action. Defendant's choice of a Federal forum for its earlier-filed legal malpractice action is entitled to comity.  Plaintiff's use of a declaratory judgment action to determine the viability of its defense, or the existence of merit, suggests forum shopping, and does not warrant a deviation from the first-to-file rule.

Case:  Wachtell, Lipton, Rosen & Katz v. CVR Energy, Inc., NY Slip Op 07091 (1st Dep't October 27, 2016)

Here is the decision.

Tomorrow's issue:  Moving for a discretionary change of venue.