A hearing on an application for the award of attorney's fees.

Practice point:  The plaintiff waived his right to a hearing on the defendant's application by agreeing that, although "each party retains the right to appeal any order of this court with respect to counsel fees," the parties' respective applications for an award of an attorney's fee would be "done simultaneously without a right to oppose or reply."

Case:  Fishman v. Solomon, NY Slip Op 05581 (2d Dep't July 12, 2017)

Here is the decision.

Tomorrow's issue:  A claim for injuries caused by a domestic animal.

A breach of contract claim.

The law office-defendant, an LLC, opened an IOLA account with the bank-plaintiff and deposited a purported client's cashier's check into the account. Shortly thereafter, the client, through the law office, directed that the majority of the funds be wired to two international parties. Although the bank's business deposit accounts brochure says that a transfer of more than $5,000 out of a new account will be made only after nine business days, the money was wired out of the account before the ninth business day, after the bank's employees had verified by telephone with the clearinghouse bank that the check had cleared. A few days later, it was discovered that the check was fraudulent.

Practice point:  The breach of contract claim was dismissed as against the lawyer because he is not the named customer on the bank account, and there is no basis for holding him liable in the documents that comprise the application to open the account. The negligence cause of action also was dismissed as against him. Limited Liability Company Law § 1205(a) makes an LLC's member liable for negligence in the furnishing of services, that is, malpractice. Here, however, neither the lawyer nor the LLC were providing personal services to the bank; they were acting as its customer. Additionally, there are no allegations otherwise supporting a personal claim against the lawyer based on piercing the corporate veil.

Case:  Metropolitan Commercial Bank v. Levy, NY Slip Op 05505 (1st Dep't July 6, 2017)

Here is the decision. 

Tomorrow's issue:  A hearing on an application for the award of attorney's fees.

Forum selection clauses.

Practice point:  Where a contracting party has agreed to submit to the jurisdiction of a court, that party is precluded from disputing the court's jurisdiction on the grounds of forum non conveniens.

Case:  Honeywell Intl. Inc. v. ARC Energy Servs., Inc. NY Slip Op 05686 (1st Dep't July 13, 2017)

Here is the decision. 

Tomorrow's issue:  A breach of contract claim.

An alleged breach of the employer's fiduciary duty.

Practice point:  An employer-employee relationship, without more, does not give rise to a fiduciary duty.

Case:  Brook v. Peconic Bay Med. Ctr., NY Slip Op 05681 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  Forum selection clauses.

An emailed settlement agreement.

The Appellate Division reversed the motion court and granted defendant's motion to enforce the settlement agreement. The emails between the parties' counsels counsel sufficiently set forth an enforceable agreement to settle plaintiffs' claims, and plaintiff's counsel, who had authority to bind the plaintiff, accepted the defendant's offer..

Practice point:  Counsel typed his name at the end of the email accepting defendants' offer, which satisfied CPLR 2104's requirement that settlement agreements be in a writing subscribed by the party or the party's attorney.

Case:  Jimenez v. Yanne, NY Slip Op 05677 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  An alleged breach of the employer's fiduciary duty.

An affidavit submitted in oppositon to summary judgment.

Practice point:   The motion court may consider the affidavit even though it is notarized out-of-state and lacks a certificate of conformity, pursuant to CPLR 2309(c).

Case:  Redlich v. Stone, NY Slip Op 05676 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  An emailed settlement agreement.

Motions to compel or stay arbitration.

Practice point:  On the motion, the court will first determine whether the parties have agreed to submit their disputes to arbitration, and, if so, whether this dispute comes within the scope of their agreement.  The court will apply ordinary state-law principles that govern the formation of contracts.

Case: Degraw Constr. Group, Inc. v. McGowan Bldrs., Inc., NY Slip Op 05580 (2d Dep't July 12, 2017)  

Here is the decision.

Monday's issue:  An affidavit submitted in opposition to summary judgment.

Documentary evidence and dismissal.

Practice point:  A motion to dismiss a complaint based upon documentary evidence under CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence for the purpose of a motion to dismiss, the evidence must be unambiguous and of undisputed authenticity. Affidavits, deposition testimony, and letters are not considered documentary evidence within the meaning of the statute. 

Case:  Board of Mgrs. of 100 Congress Condominium v. SDS Congress, LLC, NY Slip Op 05414 (2d Dep't July 5, 2017) 

Here is the decision. 

Tomorrow's issue:  Motions to compel or stay arbitration.

Conspiracy to commit fraud.

Practice point:  New York does not recognize a cause of action for conspiracy to commit fraud.

Case:  Maheras v. Awan, NY Slip Op 05309 (1st Dep't June 29, 2017)

Here is the decision. 

Tomorrow's issue:  Documentary evidence and dismissal.

Specific performance as to real property.

Practice point:  To prevail on a cause of action for specific performance of a contract for the sale of real property, a purchaser-plaintiff must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations; that the vendor was able to convey the property; and that there is no adequate remedy at law.

Case:  1107 Putnam, LLC v. Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., NY Slip Op 05411 (2d Dep't July 5, 2017)

Here is the decision.

Tomorrow's issue:  Conspiracy to commit fraud.

A defendant's cross-motion for summary judgment dismissing the complaint.

The plaintiff alleges that he was riding a bicycle in Queens when a minivan owned and operated by the defendant pulled out of a driveway and struck him. Later that evening, the plaintiff returned to the accident site, identified the minivan he believed was involved in the accident, and recorded its license plate number. The plaintiff commenced this action to recover damages for personal injuries. The defendant cross-moved for summary judgment dismissing the complaint, contending that the plaintiff's deposition testimony revealed that the plaintiff would be unable to prove that the defendant's vehicle was the vehicle involved in the accident. The Supreme Court denied the cross motion, concluding that the defendant had failed to establish, prima facie, that his vehicle was not involved in the accident. The Appellate Division affirmed.

Practice point:  A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case. Here, the defendant failed to make a prima facie showing of his entitlement to judgment as a matter of law because he offered no evidence to affirmatively demonstrate that his vehicle was not the vehicle that struck the plaintiff. Although the defendant pointed to alleged gaps in the plaintiff's proof revealed by the plaintiff's deposition testimony, this was insufficient to satisfy his initial burden. Since the defendant failed to sustain his prima facie burden, the Supreme Court properly denied his cross motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers.

Case:  Feldberg v. Skorupa, NY Slip Op 05199 (2d Dep't June 28, 2017)

Here is the decision

Tomorrow's issue:  Specific performance as to real property.