Forum selection clauses.

The documentary evidence conclusively demonstrates that plaintiff's employment contract with defendants contained a forum selection clause mandating that her action seeking unpaid commissions be brought in Connecticut. Plaintiff does not argue that the clause is unreasonable, unjust, or invalid because of fraud or overreaching. Instead, plaintiff argues that the forum selection clause is contained in a separate contract and, therefore, is inapplicable to her claim for unpaid commissions. That argument is to no effect. All parts of the employment contract were signed by the parties at the same time and involve the same subject matter, namely, the terms and conditions of plaintiff's employment. Thus, the forum selection clause is applicable to plaintiff's action seeking unpaid commissions pursuant to the New York Labor Law.

Kravitz v. Chicken Soup for the Soul, LLC, NY Slip Op 02664 (1st Dep't May 14, 2024)

Here is the decision.

Constructive fraud.

A claim for constructive fraud is governed by a six-year statute of limitations, and arises at the time the fraud or conveyance occurs, pursuant to CPLR 213[1].

Patterson Belknap Webb & Tyler LLP v. Marcus & Cinelli LLP, NY Slip Op 02670 (1st Dep't May 14, 2024)

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Service of process.

At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence. In reviewing a determination made after a hearing, the Appellate Division's authority is as broad as that of the hearing court, and it may render the determination it finds warranted by the facts, taking into account that, in a close case, the hearing court had the advantage of seeing the witnesses.

Bohensky v. 1670 42nd St., LLC, NY Slip Op 02682 (2d Dep't May 15, 2024)

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Premises liability.

A property owner will not be held liable for injuries sustained from a condition on the property which is inherent or incidental to the nature of the property and which could reasonably be anticipated by those using it. Here, the plaintiff fell in an area of a municipal park which was characterized by reed beds and which was not intended to be a public walkway. The County established, prima facie, that the condition that caused the plaintiff's fall was incidental to the nature of the property and could reasonably have been anticipated in that location.  In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the discovery allegedly provided by the County after the summary judgment motion was fully submitted did not require denial of the summary judgment motion, as the plaintiff failed to demonstrate that the facts contained in that discovery were relevant or exclusively within the knowledge and control of the County. 

Claus v. County of Nassau, NY Slip Op 02518 (2d Dep't May 8, 2024)

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Attorneys' fees.

The decision to award attorneys' fees and the determination as to their reasonableness lies within the sound discretion of the trial court. The attorney bears the burden of establishing the reasonable value of the services rendered, based on a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community. The court should consider factors such as (1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; (2) the lawyer's experience, ability, and reputation; (3) the amount involved and benefit resulting to the client from the services; (4) the customary fee charged for similar services; (5) the contingency or certainty of compensation; (6) the results obtained; and (7) the responsibility involved.

Neeman v. Smith, NY Slip Op 02541 (2d Dep't May 8, 2024)

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Appellate practice.

 It is the appellant's obligation to assemble a proper record on appeal. The record on appeal must contain all of the relevant papers before the Supreme Court. An appeals that is not based on a complete and proper record must be dismissed.

Here, the record failed to include the exhibits allegedly demonstrating that the plaintiff's former counsel was involved in a fraud scheme. Furthermore, the record does not contain a copy of the complaint, the amended complaint, or the defendant's answer. Since these omissions have rendered meaningful appellate review of the court's order virtually impossible, the appeal must be dismissed 

Bing v. Myrtle 6, LLC, NY Slip Op 02516 (2d Dep't May 8, 2024)

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Leave to amend

A motion for leave to amend a pleading should not be granted where prejudice or surprise to the opposing party results directly from the moving party's delay. The determination to permit or deny amendment is committed to the sound discretion of the trial court. In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion is predicated and whether there is a reasonable excuse for the delay.

Ofman v. Bluestone, NY Slip Op 02542 (2d Dep't May 8, 2024)

Here si the decision.

Right to a jury trial.

Claims seeking only money damages under the quasi-contractual theory of quantum meruit are actions at law, and, as such, the parties are entitled to a trial by jury. Defendant did not waive a jury trial, but, instead, filed his jury demand within fifteen days after service of the note of issue, and more than a year before the purported attorney fee hearing, pursuant to CPLR 4102[a]. Defendant did not lose his right to a jury trial when the motion and cross-motion for summary judgment were decided against him. Supreme Court erred by conducting a bench trial on damages.

Hilton Wiener LLC v. Zenk, NY Slip Op 02595 (1st Dep't May 9, 2024)

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The law of the case.

The law of the case doctrine is a rule of practice that once an issue is judicially determined, further litigation of that tissue should be precluded in a particular case. The doctrine prevents the parties, or those in privity with them, from relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue.

Teshabaeva v. Family Home Care Servs. of Brooklyn & Queens, Inc., NY Slip Op 02610 (1st Dep't May 9, 2024)

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Summary judgment.

Plaintiff argues that the motion for summary judgment is premature, but plaintiff has not shown that additional discovery is necessary The mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during discovery is insufficient to deny the motion. 

The motion is granted, and the complaint is dismissed as against defendant.

Loja v. 133 Lincoln LLC, NY Slip Op 02504 (1st Dep't May 7, 2024)

Here is the decision. 

Defaults.

Plaintiff moved for a default judgment, pursuant to CPLR 3215(a), on the ground that defendant had failed to appear. However, defendant's 3211(a) motion to dismiss constituted an appearance. Plaintiff's motion is denied. 

Barbetta v. NBCUniversal Media, LLC, NY Slip Op 02514 (2d Dep't May 8, 2024)

Here is the decision.