Accountants as fiduciaries.

Practice point:  Accountants are not fiduciaries as to their clients except where the accountants are directly involved in managing the client's investments.

Case:  Herrmann v.  CohnReznick LLP, NY Slip Op 07688 (1st Dep't November 2, 2017)

Here is the decision. 

Past consideration.

Practice point:  Past consideration is no consideration and cannot support an agreement because the detriment did not induce the promise.  Since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise.

There is an exception where the past consideration is explicitly recited in a writing. To qualify for the exception, the description of the consideration must not be vague or imprecise, and extrinsic evidence may not be used to assist in understanding the consideration.

Student note:  General Obligations Law (GOL) § 5-1105 states,  "A promise in writing and signed by the promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed."

Case:  Korff v. Corbett, NY Slip Op 07677 (1st Dep't November 2, 2017)

Here is the decision.

Court holiday.

Entry of judgment.

Practice point:  Pursuant to CPLR 3215(c), if a plaintiff does not enter the judgment within one year after the default, the court will dismiss the complaint as abandoned. While the statutory language is not discretionary, plaintiff's failure may be excused on a showing of reasonable excuse and a potentially meritorious claim.

Student note:  The defendant may waive the right to dismissal by serving an answer or taking any other step that might be viewed as a formal or informal appearance.

Case:  Bank of Am., N.A. v. Rice, NY Slip Op 07581 (2d Dep't November 1, 2017)

Here is the decision.

General Business Law § 349 - Deceptive Acts and Practices Unlawful.

The Appellate Division reversed, and dismissed the claim of a statutory violation, finding that this was a private contract dispute unique to the parties.  Even if defendant engaged in consumer-oriented conduct by posting statements on its website, those statements were not likely to mislead a reasonable consumer.  In addition, if the statements were deceptive, they did not cause plaintiff's injury. Plaintiff's alleged injury was caused by defendant's specific acts and omissions, such as failing to provide constructible drawings, re-designing the apartment's windows and doors without authorization, and failing to coordinate the project.

Case:  Loeb v. Architecture Work, P.C., NY Slip Op 07551 (1st Dep't October 31, 2017)

Here is the decision.

The element of cause in a slip-and-fall action.

Plaintiff allegedly was injured when she slipped and fell in the defendant-restaurant. Plaintiff could not identify the cause of her fall, but stated, at her deposition, that it "could have been grease from the kitchen." The Appellate Division affirmed dismissal.

Practice point:  In a slip-and-fall case, 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:  Cross v. Friendship Rest. Group, LLC, NY Slip Op 07428 (2d Dep't October 25, 2017)

Here is the decision.

An apartment fire.

Practice point: Defendant established entitlement to judgment as a matter of law in this wrongful death action arising from a fire that occurred in an apartment occupied by plaintiff's decedent, and owned and maintained by defendant. Defendant submitted evidence establishing that there was an operable smoke detector in decedent's apartment three months prior to the fire, and that it had not received any complaints about the smoke detector.  In opposition, plaintiff failed to raise a fact question as to whether the smoke detector was inoperable at the time of the fire, or whether defendant had actual or constructive notice that the detector was inoperable.

Case:  Keene v. New York City Housing Authority, NY Slip Op 07536 (1st Dep't October 26, 2017)

Here is the decision.

Workers Compensation as an exclusive remedy.

Practice point:  Plaintiff is a bus matron employed by a non-party, and she is seeking compensation for injuries that she sustained in an accident that occurred while she was working on a bus registered to the first corporate defendant and driven by the individual defendant. Defendants failed to make a prima facie showing that plaintiff was a "special employee" of the first corporate defendant, so that her claims would be barred by the exclusive remedy provisions of Workers' Compensation Law §§ 11 and 29(6).  They did not demonstrate that the first corporate defendant assumed exclusive control over plaintiff's work. In fact, their own witnesses testified that bus matrons were supervised by employees of another company, not by employees of the first corporate defendant. Defendants offered no evidence to support a finding that the second corporate defendant, allegedly liable as the school bus owner, pursuant to Vehicle and Traffic Law § 388, was entitled to rely on the exclusivity bar of the Workers' Compensation Law.

Case:  Mohammed v. Kierzowski, NY Slip Op 07525 (1st Dep't October 26, 2017)

Here is the decision.

The return of an engagement ring.

Practice point: The Appellate Division reversed and ordered a new trial, finding that the Supreme Court erred in granting the defendant's motion, made pursuant to CPLR 4401 at the the close of evidene, for judgment as a matter of law dismissing the cause of action for the return of the ring. Viewing the evidence in the light most favorable to the plaintiff, and resolving credibility issues in his favor, there was a rational process by which the trier of fact could find that, when  neither party was under an impediment to marry, the plaintiff gave the defendant the ring in contemplation of a marriage which did not occur. As such, the cause of action for the return of the engagement ring should not have been dismissed.

Case:  Bierman v. Limoncelli, NY Slip Op 07426 (2d Dep't October 25, 2017)

Here is the decision.

Law office failure as an excuse for default.

Practice point:  A party asserting law office failure must provide a detailed and credible explanation of the default.  Conclusory and unsubstantiated allegations of law office failure are not sufficient.

Student note:  Pursuant to CPLR 5015(a), in order to vacate its default in appearing at a call of the compliance conference calendar, the plaintiff had to demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action.

Case:  555 Prospect Assoc., LLC v. Greenwich Design & Dev. Group Corp.,  NY Slip Op 07423 (2d Dep't October 24, 2017)

Here is the decision.

A claim based on exposure to lead-based paint.

Practice point:  The Appellate Division affirmed denial of defendant's motion for summary judgment in this action seeking damages for injuries resulting from exposure to lead-based paint.  The record establishes that the building was constructed prior to 1960; that defendant knew that a child younger than six years of age lived in the apartment; and defendant had actual notice of a positive lead test that it failed to remediate and that resulted in a letter alerting it to the fact that the condition had not been addressed.  Defendant's expert's conclusion that the positive test was too remote in time to be reliable does not create a triable issue of fact.

Case:  Jocelyn C. v. Soundview Apts. Realty, LLC, NY Slip Op 07388 (1st Dep't October 24, 2017)

Here is the decision.