The doctrine of collateral estoppel and the pendency of an appeal.

Practice point:  The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling. The party seeking the benefit of the doctrine must establish that the identical issue was necessarily decided in the prior action and is dispositive in the present action. Once the party invoking the doctrine discharges his or her burden in that regard, the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination. The rule in New York is that the pendency of an appeal does not prevent the use of the challenged judgment as the basis of' collateral estoppel.

Case:  77 Water St., Inc. v. JTC Painting & Decorating Corp., NY Slip Op 02396 (2d Dep't March 29, 2017)

Here is the decision. 

Tomorrow's issue:  A municipality's liability on a section 1983 claim.

Judicial review of a prenuptial agreement.

The challenge of the agreement is a high bar, and where the agreement and the circumstances surrounding its execution are fair, there is no further inquiry.

Case:  Abram v. Joanne Cheung Sui Mei, NY Slip Op 02368 (1st Dep't March 28, 2017)

Here is the decision.

Tomorrow's issue:  The doctrine of collateral estoppel and the pendency of an appeal.

Statute of frauds.

The General Obligations Law provides, in pertinent part, that an agreement is void if it is not in writing and "subscribed by the party to be charged therewith" (General Obligations Law § 5-701[a]) when the agreement "[i]s a contract to pay compensation for services rendered in negotiating . . . a business opportunity" (General Obligations Law § 5-701[a][10]). The memorandum necessary to satisfy the statute of frauds may be pieced together out of separate writings, connected with one another either expressly or by the internal evidence of subject matter and occasion.  An unsigned writing may be read together with the signed writings, provided that they clearly refer to the same subject matter or transaction.

Part performance does not take the matter out of the statute of frauds. The exception to the statute of frauds for part performance has not been extended to General Obligations Law § 5-701.

Case:  Kelly v. P & G Ventures 1, LLC, NY Slip Op 02026 (2d Dep't March 22, 2017)

Here is the decision.

Monday's issue:  Judicial review of a prenuptial agreement.

Family Ct Act § 437-a.

Family Court improvidently exercised its discretion in not imputing to the father as income the $500 per month he was earning from his part-time employment in 2012 solely on the basis of Family Ct Act § 437-a, which bars the Family Court from requiring a recipient of social security disability benefits to engage in certain employment related activities. That statute is not dispositive in this case where the father had been employed during the pendency of his social security disability benefits application and did not show that he was unable to continue to be employed in any capacity after he began receiving benefits. The matter was remanded for a new determination as to the amount of child support, including a new determination as to whether the $500 per month should be imputed to the father.

Case:  Matter of Anthony S. v. Monique T.B., NY Slip Op 02365 (1st Dep't March 28, 2017)

Here is the decision.

Tomorrow's issue:  Statute of frauds.

The law of waiver and estoppel.

Practice point: Once a contract is formed, the parties may change their agreement by another agreement, by course of performance, or by conduct amounting to a waiver or estoppel.  So, contractual rights may be waived if they are knowingly, voluntarily and intentionally abandoned, and abandonment may be established by affirmative conduct or by failure to act so as to evince an intent not to claim a purported advantage.

As the intentional relinquishment of a known right, a waiver is not lightly presumed, and mere negligence, oversight or thoughtlessness does not create a waiver. Similarly, a party's reluctance to terminate a contract upon a breach and its attempts to encourage the breaching party to adhere to its obligations under the contract do not necessarily constitute a waiver of the innocent party's rights in the future.

However, a waiver may be proved by undisputed acts or language so inconsistent with the party's purpose to stand upon his or her rights as to leave no opportunity for a reasonable inference to the contrary.

Case:  Kamco Supply Corp. v. On the Right Track, LLC, NY Slip Op 02025 (2d Dep't March 22, 2017)

Here is the decision.

Tomorrow's issue:  Family Ct Act § 437-a.

Summary judgment and discovery.

Practice point:  The motion will not be defeated when the nonmovant offers only speculation that further discovery may yield evidence that raises a triable issue.

Case:  Stein v. City of New York, NY Slip Op 02131 (1st Dep't March 23, 2017)

Here is the decision.

Tomorrow's issue:  The law of waiver and estoppel.

An appeal from an intermediate order.

Practice point:  The right of direct appeal from an intermediate order is terminated with the entry of judgment in the action.

Case: Qin Jun Ying v. May Flower Intl., Inc., NY Slip Op 01899 (2d Dep't March 15, 2017)

Here is the decision.

Tomorrow's issue:  Summary judgment and discovery.

Notice in an eviction proeeding.

Practice point:   Compliance with a statutory notice requirement is a condition precedent to maintaining a summary eviction proceeding, and the landlord has the burden to prove that element of its case.  A tenant may timely raised the objection in the answer and again in across motion for summary judgment despite not having raised it in the preanswer motion, pursuant to CPLR 3211[e].

Case:  Mautner-Glick Corp. v. Glazer, NY Slip Op 01963 (1st Dep't March 16, 2017)

Here is the decision.

Monday's issue:  An appeal from an intermediate order.

A claim of conspiracy to commit a tort.

Practice point:  The conspiracy to commit a tort is not, of itself, a cause of action, and such an action is time-barred when the substantive tort underlying it is time-barred.

Case:  Loren v. Church St. Apt. Corp., NY Slip Op 01964 (1st Dep't March 16, 2017)

Here is the decision.

Tomorrow's issue: Notice in an eviction proceeding.

Snow, ice, and an out-of-possession landlord's liability.

Practice point:  Snow or ice is not a significant structural or design defect for which an out-of-possession landlord may be held liable.

Case:  Cepeda v. KRF Realty LLC, NY Slip Op 01961 (1st Dep't March 16, 2017)

Here is the decision.

Tomorrow's issue:  A claim of conspiracy to commit a tort.

The improper entry of a clerk's judgment

Practice point:  A clerk does not have authority to enter a clerk's judgment against a defendant pursuant CPLR 3215(a) if the plaintiff's causes of action are not for a sum certain.

Case:  Primary Care Ambulance Corp. v. Simpson, NY Slip Op 01898 (2d Dep't March 15, 2017)

Here is the decision.

Tomorrow's issue:  Snow, ice, and an out-of-possession landlord's liability.