Category Archives: Litigation

Truth is Sometimes Stranger than Fiction

This post originally appeared on the SGR blog.

Jared Schaefer was served food at Tony’s Sushi restaurant that contained peanuts, an ingredient that was not listed on the menu. He alleged that the peanuts caused him to suffer an allergic reaction. Schaefer alleged that the restaurant was negligent in failing to warn him of the presence of peanuts in the food, creating a dangerous condition, and in failing to disclose the presence of a potential allergen.

Tony’s moved for summary judgment dismissing the complaint, arguing that it did not owe a duty to Schaefer, or, if it did owe a duty, that there was no causal connection between its alleged negligence and Schaefer’s injuries. Schaefer opposed the motion, arguing that triable issues of fact existed as to the duty owed by Tony’s and as to the causal connection between the presence of the alleged allergen and his injury.

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SHOUT “FORE” BEFORE TAKING THAT “MULLIGAN”

Golf, like any other recreational activity, runs the risk of accidents on the course – and the resulting injuries often lead to “finger pointing” as to which golfer was at fault.  And the game also often raises predictable and unpredictable collateral disputes such as whether a golf club membership is property that can be seized by a judgment creditor; and claims for trespass and nuisance damages when golf balls land on an adjacent property.  Several recent examples follow:

MacIsaac v. Nassau County, 2017 NY Slip Op 05814, 2d Dept. July 26, 2017 Continue reading

New York Court of Appeals Alert (March 2019)

This first appeared on the SGR Blog.

The mid-2019/2020 Term of the Court of Appeals did not result in any “blockbuster” civil law decisions. The Court, however, did release two opinions that demonstrate how the panel addresses the application of precedents, on the one hand, and substantive conflicts in the Appellate Divisions, on the other.

In the first case, over a stinging dissent, the Court adhered to a 1999 decision  holding that a “stairway” may constitute a “sidewalk”  for tort liability purposes.  And in the second, the Court resolved a split in the Departments over whether the filing of  suit by a New York attorney who did not (as required by law)   maintain an office in the state,  was a curable violation.

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Court of Appeals #17

We recently published Court of Appeals #17.

THE DEATH OF YELLOWSTONE?

The Second Department recently released a decision which, if followed by commercial landlords, over time may signal the demise of Yellowstone proceedings.  In 159 MP Corp. v. Redbridge Bedford, LLC, the Court (over a strong dissent) held that a written lease, negotiated at arm’s length by a commercial tenant, may include the waiver of a right to declaratory judgment relief – and held that such a waiver is not void and unenforceable as a matter of public policy.

A Yellowstone proceeding is, at its foundation, a declaratory judgment action.  So, unless 159 MP Corp. is appealed to and reversed by the Court of Appeals, going forward commercial leases may include a waiver of the right to Yellowstone relief.  Such a change would have dramatic procedural and evidentiary significance.  In a classic Yellowstone proceeding, the commercial tenant is given the benefit of the doubt to maintain the status quo.  Under 159 MP Corp., the historical assumptions and presumptions in favor of the tenant under the Yellowstone legal regime would no longer be available.

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Court of Appeals #15

We recently published a new update on decisions from the Court of Appeals

THE “ART” OF THE SUIT

Art has become both a commodity and an investment – and, as a result, disputes involving art and antiquities have become regular fare in our Courts.  During a recent three-week period, the First Department issued two opinions and Supreme Court, New York County, published three decisions relating to art and antiquities – involving the doctrine of mutual mistake; art looted during World War II; a disputed consignment agreement; misrepresentations as to the sale price of a painting; and artwork left for framing. Continue reading

UNDER THE RADAR

Much of the day-to-day work of our Courts takes place behind the scenes in ex parte or otherwise expedited proceedings in which exigent or otherwise extreme circumstances require an immediate hearing and a prompt disposition.  Examples follow in which the plaintiff-wife sought an Order enjoining her defendant-husband from being present in a delivery room when she gave birth to their child; a psychiatric facility sought an Order permitting retention of a patient and authorizing medication over the patient’s objection; petitioners sought to enjoin the special guardian of an incapacitated person from withdrawing life-sustaining treatment; petitioners sought to disinter and move a body; and legal parents of children in New York, whose legal standing is not recognized in all states and abroad, sought to adopt children here.

B.T. v. E.T., 2016 NY Slip Op 26280 (Sup. Ct. Richmond Co., DiDomenico, J., September 2, 2016) Continue reading

(NO “LITIGATION HOLD”) + SPOLIATION = SANCTIONS

“Litigation hold” is a notice requiring the preservation of all data that may relate to a claim or lawsuit.  “Spoliation” is the loss or destruction of evidence relative to a legal proceeding.

The failure to send or implement a “litigation hold” may result in loss of evidence resulting in a claim of “spoliation” – the sanctions for which run the gamut from an adverse inference charge that the lost evidence was damaging in nature or, in the extreme, to the striking of a pleading. Continue reading

REMEMBER: LOOK BOTH WAYS BEFORE CROSSING!

As a commercial litigator I am amazed about the complexity of areas of the law where I have no experience, on the one hand, and the novel and/or complicated issues that arise in those practice areas, on the other.  A recent decision by the Appellate Division, First Department, is illustrative:

Quintavalle v. Perez, 2016 NY Slip Op 03126 (decided on April 26, 2016)

The Appellate Division was called upon to “consider the application of case law holding that a pedestrian who crosses in the crosswalk with the right-of-way may still be held comparatively negligent, if he failed to notice an oncoming vehicle that could be seen by the use of ordinary attention”.

The Court summarized the facts:

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