The Labor Law and the interpretation of an Industrial Code regulation.

Practice point:  The interpretation of an Industrial Code regulation presents a question of law for the court. In interpreting a regulation, the Court must assume that the promulgating agency did not deliberately put in the regulation a phrase that was intended to serve no purpose, and each word must be read and given a distinct and consistent meaning.

Case:  Pruszko v. Pine Hollow Country Club, Inc., NY Slip Op 03025 (2d Dep't April 19, 2017)

Here is the decision. 

Tomorrow's issue:  Opposing a summary judgment motion.

Damages, irreperable harm, and injunctive relief.

Practice point:  If a plaintiff fails to allege damages of a noneconomic nature, there is no showing of irreparable harm, and injunctive relief is inappropriate.

Case:  Moltisanti v. East Riv. Hous. Corp., NY Slip Op 02919 (1st Dep't April 18, 2017)

Here is the decision.

Tomorrow's issue:  The Labor Law and the interpretation of an Industrial Code regulation.

Leave to file a late notice of claim

Practice point:  General Municipal Law § 50-e(7) provides that "[w]here the application is for leave to serve a late notice of claim, it shall be accompanied by a copy of the proposed notice of claim." Failure to comply with that provision is sufficient justification to deny the motion.

Case:  Bethune v. Nassau Univ. Med. Ctr. (NUMC), NY Slip Op 02770 (2d Dep't April 12, 2017)

Here is the decision.

Monday's issue:  Damages, irreparable harm, and injunctive relief.

Personal jurisdiction, nondomiciliaries, and agency.

Practice point:  To establish that a nondomiciliary defendant acted through an agent, a plaintiff must convince the court that the New York actors engaged in purposeful activities in the State in relation to the transaction at issue, for the benefit of and with the knowledge and consent of the defendant, and that the defendant exercised some control over the New York actors. To make a prima facie showing of control, a plaintiff's allegations must sufficiently detail the defendant's conduct so as to persuade a court that the defendant was a primary actor in the specific matter in question. Control cannot be shown based merely upon a defendant's title or position within the corporation, or upon conclusory allegations that the defendant controls the defendant corporation.

Case:  Coast to Coast Energy, Inc. v. Gasarch, NY Slip Op 02876 (1st Dep't April 13, 2017)

Here is the decision. 

Tomorrow's issue:  Leave to file a late notice of claim.

Personal jurisdiction over a nondomiciliary.

Practice point:  Pursuant to CPLR 302(a)(1) a New York court may exercise personal jurisdiction over a nondomiciliary if the nondomiciliary has purposefully transacted business within New York, and there is a substantial relationship between the transaction and the claim asserted. Purposeful activities are volitional acts by which the non-domiciliary avails itself of the privilege of conducting activities within the State, thus invoking the benefits and protections of its laws. More than limited contacts are required for purposeful activities sufficient to establish that the non-domiciliary transacted business in New York.

Case:  Coast to Coast Energy, Inc. v. Gasarch, NY Slip Op 02876 (1st Dep't April 13, 2017)

Here is the decision.

Tomorrow's issue:  Personal jurisdiction, nondomiciliaries, and agency.

An enforceable liquidated damages clause.

Practice point:  An enforceable liquidated damages clause is an estimate of the extent of the injury that would be sustained as a result of breach of the agreement, and embodies the principle of just compensation for loss.  Whether a clause is an enforceable liquidation of damages or an unenforceable penalty is a question of law, giving due consideration to the nature of the contract and the circumstances.

Case:  555 W. John St., LLC v. Westbury Jeep Chrysler Dodge, Inc., NY Slip Op 02769 (2d Dep't April 12, 2017)

Here is the decision.

Tomorrow's issue:  Personal jurisdiction over a nondomiciliary.

A legal malpractice claim.

Practice point:  An action to recover damages arising from legal malpractice must be commenced within three years, computed from the time the cause of action accrued to the time the claim is interposed, pursuant to CPLR 214[6]. The claim accrues when all the facts necessary to the cause of action have occurred and the allegedly injured party can obtain relief in court. In most cases, this accrual time is measured from the day an actionable injury occurs, even if the aggrieved party is then ignorant of the wrong or injury. What is important is when the malpractice was committed, not when the client discovered it. Continuous representation may toll the statute of limitations, but only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.

Case:  3rd & 6th, LLC v. Berg, NY Slip Op 02768 (2d Dep't April 12, 2017)

Here is the decision.

Tomorrow's issue:  An enforceable liquidated damages clause.

No-fault claims and allegedly fraudulent providers.

Practice point:  A provider that is not solely owned and controlled by physicians, as required by Business Corporation Law §§ 1507(a) and 1508(a), is ineligible for no-fault reimbursements, and insurers may look at the actual ownership and operation of the practice, namely, whether the practice was actually controlled or owned by an unlicensed individual in violation of state and local law. However, insurance carriers cannot delay payment of reimbursement claims to pursue investigations without good cause, and "good cause" requires a demonstration of behavior tantamount to fraud. Violations such as a failure to hold an annual meeting, pay corporate filing fees, or submit otherwise acceptable paperwork on time will not rise to the level of fraud.

Case:  Carothers v. Progressive Ins. Co., NY Slip Op 02615 (2d Dep't April 5, 2017)

Here is the decision.

Monday's issue:  A legal malpractice claim.

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.