Post-note of issue discovery.

Practice point:  Trial courts are authorized, as a matter of discretion, to permit post-note of issue discovery without vacating the note of issue, so long as neither party will be prejudiced.

Case:  Cuprill v. Citywide Towing & Auto Repair Servs., NY Slip Op 02729 (1st Dep't April 6, 2017)

Here is the decision.

Tomorrow's issue: No-fault claims and allegedly fraudulent providers.

Settlement agreements as to child support.

Practice point:  Where a stipulation of settlement is incorporated but not merged into a judgment of divorce, it is a contract subject to the ordinary principles of contract construction and interpretation. These rules provide that a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms, and courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing. In the specific realm of settlement agreements defining a parent's child support obligations, there is a presumption that the agreement reflects what the parties believed to be a fair and equitable division of the financial burden to be assumed in rearing the child. However, the parties cannot contract away the duty of child support. Despite the fact that a separation agreement is entitled to the solemnity and obligation of a contract, when children's rights are involved the contract yields to the welfare of the children. The duty of a parent to support the child  cannot be eliminated or diminished by the terms of a separation agreement, nor can it be abrogated by contract.

Case:  Keller-Goldman v. Goldman, NY Slip Op 02723 (1st Dep't April 6, 2017)

Here is the decision. 

Tomorrow's issue: Post-note of issue discovery.

A law firm's motion to enforce an attorney's lien.

The Appellate Division affirmed denial of the motion where the nonparty firm alleges that, after it interposed an answer, it settled the personal injury action, but the plaintiff-client refused to sign the settlement papers.  The firm sent a letter to the plaintiff indicating its intent to move to be relieved as counsel, and the moved to confirm the purported settlement and enforce an attorney's lien pursuant to Judiciary Law § 475. In support of the motion, the firm submitted certain correspondence and the retainer agreement, but it did not submit a signed writing reflecting the terms of the purported settlement.

The Appellate Division noted that there was no stipulation made in open court, and the firm failed to proffer a signed writing reflecting a settlement or any clear indicia that the plaintiff actually authorized the purported settlement, pursuant to CPLR 2104. Without a settlement or a verdict, there was no favorable result of litigation in which the firm had a security interest, and so the firm was not entitled to confirmation of the purported settlement or an attorney's lien pursuant to Judiciary Law § 475.

Case:  Baker v. Restaurant Depot, NY Slip Op 02615 (2d Dep't April 5, 2017)

Tomorrow's issue:  Settlement agreements as to child support.

Civil contempt.

Practice point:  The validity of an order underlying a contempt proceeding may not be attacked on the grounds that the issuing court had no jurisdiction to do so, or that the order had been stayed.  

Judiciary Law § 753 does not require a showing of wilfulness or monetary harm as a precondition to a finding of civil contempt, and the Court of Appeals has not imposed a wilfulness requirement for a civil contempt finding.

Case:  Board of Directors of Windsors Owners Corp. v. Platt, NY Slip Op 02508 (1st Dep't March 30, 2017

Here is the decision. 

Tomorrow's issue:  A law firm's motion to enforce an attorney's lien.

An alleged breach of a non-compete clause.

A plaintiff alleging a competition-based claim must identify the relevant market with reference to the rule of reasonable interchangeability. Here,  plaintiff pleaded nothing but conclusory statements without factual support for its claim that its products are competitive with those of the corporate defendant. The only allegation in the complaint concerning competition is that both plaintiff and the corporate defendant market their coffeemakers to commercial customers. There are no allegations that the corporate defendant's products are sold to the same relevant market, for a similar purpose, let alone to the same customers. The complaint further fails to allege that plaintiff lost any customers to the corporate defendants. As to damages, vague, boilerplate allegations are insufficient to sustain the cause of action.

Case:  Bodum USA, Inc. v. Perez, NY Slip Op 02507 (1st Dep't March 30, 2017)

Here is the decision.

Monday's issue:  Civil contempt.

Dismissal based on documentary evidence.

Practice point:  Dismissal of a complaint pursuant to CPLR 3211(a)(1) is only appropriate where the documentary evidence presented conclusively establishes a defense to the plaintiff's claims as a matter of law. The documents submitted must be explicit and unambiguous. In considering the documents, a court must adhere to the concept that the allegations in the complaint are presumed to be true, and that the pleading is entitled to all reasonable inferences. However, while the pleading is liberally construed, the court is not required to accept as true factual allegations that are plainly contradicted by documentary evidence.
Case:  Dixon v. 105 W. 75th St. LLC, NY Slip Op 02504 (1st Dep't March 30, 2017)  
Here is the decision.   
Tomorrow's issue:  An alleged breach of a non-compete clause.

A municipality's liability on a § 1983 claim.

Practice point:  A municipality may not be held liable pursuant to 42 USC § 1983 solely on a theory of respondent superior. To hold a municipality statutorily liable for the conduct of employees below the policy-making level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy.

Case:  Blake v. City of New York, NY Slip Op 02399 (2d Dep't March 29, 2017)

Here is the decision. 

Tomorrow's issue: Dismissal based on documentary evidence.

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.