Monthly Archives: January 2015

Mohel v Gavriel Plaza, Inc.,

___ AD3d ___, ___ NYS2d ___, 2014 NY Slip Op 08508 [1st Dept., 2014]
This terse decision prompts a review of the rules governing the deposition site of out-of-state parties, as well as of depositions by video conference. The nature of the action is not stated, but the defendant Highland was a Limited Liability Company with one member, a resident of Israel. The Appellate Division affirmed Supreme Court’s order conditionally striking Highland’s answer unless it produced that member for deposition in New York. The court observed that the plaintiff did not have to consent to the member’s deposition by video conference. (See, CPLR 3113 [d])
The general rule is that absent a showing of hardship, a party to an action in our courts must be deposed in New York, and must bear its own expenses in coming here. Compare Criscenti v Verizon, 72 A.D.3d 464, where a corporate party showed no hardship and had to come to New York for deposition; with Gartner v Unified Windows, Doors & Siding, Inc., 68 A.D.3d 815, where a decedent’s next of kin lived in Colombia and could not come to New York without hardship. Alternatives to a New York deposition were allowed and listed.
Two recent cases illustrate the point.  Read More

In the January NYSBA Journal David Horowitz has an excellent discussion of motions in limine and expert witness statements, centering on the First Department case of Rivera v Montefiore Medical Center. The article is available online (to NYSBA members) here.

Morgan Keegan & Co., Inc. v Rote,

115 A.D.3d 516, 982 N.Y.S.2d 448 [1st Dept., 2014]
Petitioner sought to set aside an arbitration award, and the threshold question was whether or not the petition could be heard in New York.
The arbitration agreement specified that the hearing was to be held in Memphis, Tennessee, in accordance with FINRA rules. Several days’ worth of the hearings were in fact held in New York, for the convenience of the arbitrators. The case had no other connection to New York.
These facts did not suffice as a basis for the assertion of personal jurisdiction in New York, and the petitioner’s petition to set aside the arbitration award was properly denied.

Anonymous v Lerner,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00469 [1st Dept., 2015]

The anonymous plaintiff claimed that the defendant negligently and fraudulently gave her herpes. The defendant moved to compel her to be named in the action, which Supreme Court granted and the First Department here affirmed. Clearly, the allegations of a sexually transmitted disease implicate substantial privacy rights, but then the complaint implicates the defendant’s privacy rights to the same extent. The plaintiff didn’t help herself by giving interviews to the news media before serving the summons and complaint on the defendant. The court’s discretion is to be guided by balancing the plaintiff’s privacy claims against the presumption favoring open trials and prejudice to the defendant. The court noted that mere claims of public humiliation and embarrassment will not justify allowing a party to proceed anonymously.

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Red Zone LLC v Cadwalader, Wickersham & Taft LLP,

118 A.D.3d 581, 988 N.Y.S.2d 588 [1st Dept., 2014], lv. app. gtd., ___ NY3d ___, ___ NYS2d ___, 2014 N.Y. Slip Op. 90722 [2014]
This the third of a three-part series of recent cases illustrating the continuous representation toll in legal malpractice actions. Here, the period of representation was held to continue despite the completion of the specific task for which the defendant firm had been hired, and the passage of some two years before the next consultation between the client and the firm. It also illustrates the specific rationale for the rule: the client looked to the firm to attempt to avoid or ameliorate the effects of the alleged malpractice.
When plaintiff attempted a takeover bid for Six Flags, Inc., its financial advisor was UBS Securities LLC. The defendant law firm had represented plaintiff in its negotiations with UBS, and drafted an agreement which aimed, in part, at capping UBS’s fees. Plaintiff wanted to cap UBS’ fees at $2 million unless it was successful in obtaining more than 51% of Six Flags’ voting shares. It thought the agreement did that, but UBS successfully sued plaintiff for $10 million in fees. When that action reached the First Department, the court rejected the argument that the agreement capped the fee.
The agreement was drafted and executed in 2005. There were no consultations between the plaintiff and the defendant firm from then until 2007, when it became involved in the litigation between plaintiff and UBS. Defendant, although it did not represent plaintiff in the litigation with UBS, continued to render legal advice during the course of the litigation, conferring with plaintiff and its trial counsel and sharing documents. The court viewed this relationship as defendant’s attempt to correct its malpractice in drafting an ambiguous agreement by preventing UBS from demanding and receiving a fee in excess of $2 million. That being so, the continuous representation doctrine applied and tolled the limitations period.
The fact of the two-year gap in representation did not rule out a continuing representation, as there was no need for plaintiff to consult with defendant during that period, and the defendant firm did not notify the plaintiff that the representation had ended.

Matter of The Nonhuman Rights Project, Inc. v Presti,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00085
Last week I reported the decision of the Third Department rejecting habeas corpus relief for Tommy the chimpanzee. The court held squarely that chimps, regardless of their cognitive abilities, are not “persons” within the meaning of CPLR 7002, and that it would be inappropriate to confer legal rights on them. The Fourth Department here rejects a similar petition on behalf of a chimp named Kiko, but on entirely different grounds. Assuming, for the sake of argument, both that Kiko is a “person” and that the petitioner have standing to seek habeas relief on his behalf, the petition would still be denied on settled principles. The petitioner sought only to have Kiko transferred to a different facility, not to have him released. Habeas corpus does not lie where the challenge is to the conditions of confinement rather than the confinement itself, or where the subject of the proceeding would not be entitled to immediate release.

The petitioner, the Nonhuman Rights Project, maintains a blog, with a fascinating post here concerning the reasons for the trio of New York habeas petitions, and another here concerning the status of the Argentinian proceeding reported in several (apparently overblown) news stories. The Argentinian court did not recognize an orangutan as a legal person.

Farage v Ehrenberg, ___ AD3d ___,

996 NYS2d 646, 2014 NY Slip Op 07977 [2d Dept., 2014]

This is the second in a three-part series concerning the continuous representation toll in legal malpractice cases. The issue here was where to fix the end of the representation, and hence the end of the toll and the commencement of the limitations period. The precise question was whether the representation necessarily extended until the date a Change of Attorney form was filed, or whether it had ended at some earlier date. The Court held that the determination was fact-specific, but that an earlier date could indeed be established, and an earlier date had in fact had been established here. The action was therefore dismissed as time-barred.

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Friends of Thayer Lake LLC v Brown,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00420

The issue was whether a certain waterway in Hamilton County is navigable-in-fact, a determination which bears significantly on the property rights of the adjacent landowners. The parties moved and cross-moved for summary judgment, and the proof was such that the trial court stated its inclination to view the ultimate determination as one of fact, to deny the motions and leave the matter for trial. The parties, both before the trial court and in the Appellate Division, noted that despite an extensive record the essential facts were not in dispute and asked the court to issue a determination as a matter of law.
Noting the general principle that the parties may chart their own procedural course, the Appellate Division held that under the circumstances it was appropriate to accede to the parties’ request and determine the dispute as a matter of law.

24 N.Y.3d 320, ___ NYS2d ___, 2014 NY Slip Op 07291 [2014]
            The litigation over the estate of Sylvan Lawrence lasted twenty-two years, from 1983 to 2005. The opposing sides were the decedent’s widow and children, and his executor, his former business partner. Fifteen years into the litigation, the decedent’s widow made gifts of over a million dollars each to three of the partners of the firm representing her and her children, and of $400,000 to the firm itself. At the end of the litigation, the widow sought to compel the attorneys to return the gifts. The attorneys raised the defense of limitations, and the widow relied on the continuous representation toll to avoid it.

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There were no fewer than three significant cases this year concerning limitations in legal malpractice cases and the continuous representation toll. I’ll present discussions of them over the next two weeks. First up will be the Court of Appeals decision in Matter of Lawrence, where the question was whether the toll applied to an action to recover gifts given to the attorneys during a prolonged estate litigation. [Spoiler alert: it didn’t.] Next will be Farage v Eisenberg, a Second Department case where the question was where to fix the end of the representation and thus the end of the toll. Finally, the First Department case of Red Zone v Cadwalader, Wickersham & Taft, illustrating the underlying rationale for the rule and the actions that may justify applying it.