Thursday, February 9, 2012

Published Decisions

While most day-to-day court orders are not published beyond the county clerk's file in the particular case (public record for most cases, and sealed for matrimonial and some others), decisions from the appellate courts, as well as select trial level decisions, are published and used as guidance for deciding future cases.  Below is a list of published decisions where I have been the lawyer writing the briefs and/or arguing the appeal or motion:


Murphy v. NYC Transit, 74 A.D.3d 1158 (2d Dept. 2010) - Reversing dismissal of claim against municipality for failure to properly respond to assault.

Morris v. Bianna, 69 A.D.3d 910 (2d Dept. 2010) - Affirming denial of summary judgment in dram shop claim related to stabbing in a bar.

Funk v. UPS, 73 A.D.3d 851 (2d Dept. 2010) - Dismissing claim for trip and fall based upon inadequate lighting during a charity event.

Luo v. Mikel, 625 F.3d 772 (2d Circuit, 2010) - Reversing summary judgment on issue of serious injury in a motor vehicle accident case.

Wang v. 161 Hudson, 60 A.D.3d 668 (2d Dept. 2009) - Affirming jury verdict on liability, and remanding for new trial on damages.

Strickland v. PAL, 2009 NY Slip Op 50067(U) (Kings County, 2009) - Denying summary judgment in case regarding negligent crowd control.

Zheng v. Cohen, 52 A.D.3d 801(2d Dept. 2008) - Affirming denial of motion to dismiss construction accident claim.

Stawski v. Pasternack, 54 A.D.3d 619 (1st Dept. 2008) - dismissal reversed, and summary judgment granted in Plaintiff's favor, in legal malpractice claim based upon failure to timely file a construction accident claim.

Vignapiano v. Herbert Construction, 46 AD3d 544 (2d Dept. 2007) - Dismissed negligence case against property manager.


Ferri v. Riutta, 2012 NY Slip Op 30299(U)(Suffolk County, 2012) - among other things, dismissing an intentional infliction of emotional distress claim by in-laws against spouse involved in a divorce because the alleged conduct was not “so outrageous or extreme as to go beyond all possible bounds of decency" and, as "New York State does not recognize a cause of action to recover damages for this tort between spouses... it would appear that an action by the parent of a divorcing party to recover damages for intentional infliction of emotional distress in connection with the actions by and between the divorcing child and child-in-law should not be recognized by this court.”

Stolte v. McLean, 2012 N.Y. Slip Op 50115(U) (Suffolk County, 2012) - granting declaratory judgment to claimants in a post-divorce action over life insurance and pension proceeds.

Gaffney v. Romanello, 82 A.D.3d 930 (2d Dept. 2011) - Affirming order regarding interim counsel fees.

Wallach v. Wallach, 2007 NY Slip Op 30864(U) (Suffolk County, 2007) - granting motion for discovery in post-divorce action for breach of settlement agreement.


Mavropoulos v. Anderson, 2012 NY Slip Op 30546(U) (Suffolk County, 2012) - resolving various pre-answer motions in shareholders dispute, including denying a motion to dismiss based upon an alleged agreement because agreement said "lawyers agreement to follow" and "the purported agreement did nto constitute a final agreement and a meeting of the minds regarding the dissolution."

Bharucha v. Greenberg, 2011 NY Slip Op 30171(U) (Nassau County, 2011) - denial of motion for summary judgment in breach of contract action regarding escrow agreement in a real estate transaction.

Salomon v. Burr, 769 F.Supp.2d 83 (E.D.N.Y. 2011) - Denial of summary judgment on personal guarantee in a real estate transaction.

Abuelhija v. Chappelle, 08-cv-3679 (S.D.N.Y., 2009) - dismissal of claim for breach of settlement agreement in an entertainment/management dispute.

Kremen v. Morelli, 54 A.D.3d 596 (1st Dept., 2008) - Legal malpractice claim dismissed.

Rothman v. Morelli, 43 A.D.3d 769 (1st Dept., 2007) - Dismissing claim in attorney fee-sharing dispute.


Crump v. N.T.B.Y., Inc., ___ F.Supp.3d ____ (EDNY, 2012) - denying motion for summary judgment in employment discrimination case because "disallowing Plaintiff's 'kind' from using a specific door reasonably could be interpreted by a jury as discriminatory."

Green v. Canarsie2012 NY Slip Op 50702(U) (Kings County, 2012) - motion to dismiss denied as premature in employment discrimination case. 

Graham v. Fareed, 55 AD3d 405 (1st Dept. 2008) - dismissal claim in contract/employment action reverse.

Wednesday, February 8, 2012

Divorce Attorney: Pension and Life Insurance Benefits Agreement Enforced Post Judgment

I recently received a much awaited decision on one of my cases in the Suffolk County Supreme Court in a post-judgment matrimonial matter.  In this case, the stipulation of settlement in the prior divorce had provided for certain rights regarding one of the parties' pension and life insurance proceeds. That spouse, however, then made his second wife the beneficiary, who received the proceeds upon his death.  The first wife and children moved to enforce their rights, and the Court found:

Separation agreements purporting to equitably assign pension benefits should be given the same protection as Court Ordered benefits... a Separation Agreement expressly distributing pension benefits as marital property pursuant to the Equitable Distribution Law is enforceable...
Similarly, the court found:
A promise in a separation agreement to maintain an insurance policy designating a spouse as beneficiary vests in the spouse an equitable interest in the policy specified, and that spouse will prevail over a person in whose favor the decedent executed a gratuitous change in beneficiary...
The full decision can be read here.   

Friday, February 3, 2012

Save Sanity And Trees

                Other attorneys may disagree, but my general philosophy with legal drafting, whether drafting a contract or a litigation document, is to make things as simple, concise, clear, and efficient as possible.   “Papering” the other side can have some strategic advantage in rare instances, and often even a concise legal document would be considered voluminous by a lay person.   As a general rule, however, my contracts are written so that they can be easily understood without ambiguity or excess verbiage; my pleadings tell people what a case is actually about; my discovery demands and responses are short and to the point; and my motions are relatively easy to read and understand.

             One prime example where trees weep over the inefficiency of the legal profession is in discovery.   Many lawyers will preface their document demands with pages upon pages of meaningless instructions and definitions, followed by an unnecessarily large number of duplicative and barely intelligible demands.  The only “instructions” necessary for responding to a discovery demand are the CPLR and the Administrative Rules (in State Court), or the Federal Rules (in Federal Court), and the rules of the individual judge.  No matter what “instructions” an attorney puts on their demands, a party cannot unilaterally override those rules.
             Personally, with respect to discovery, I am a big fan of Rule 26 in the Federal Rules.    Under that rule, a “party must, without awaiting a discovery request, provide to the other parties…  (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information… (ii) a copy of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment… and (iii) a computation of each category of damages claimed…  [and] documents or other evidentiary material… on which each computation is based, including materials bearing on the nature and extent of injuries suffered” and (iv) insurance information.  

             Thus, under Rule 26, or a State Court discovery demand that parrots its language, everything should be disclosed - period.  Obviously, you may need some specifically tailored requests to ensure that everyone knows what is considered relevant, and so that you have a basis for seeking court intervention if there is noncompliance.  A laundry list, however, does not help anyone.  In fact, clever efforts to turn 10 demands into 200 only serve to create more work for everyone, including the Courts if they become involved.  Addressing discovery disputes over a handful of well-written requests is relatively simple when compared with fighting over dozens, or hundreds, of separate requests.    In fact, I think the reason for some of the overkill is lawyers being fearful that they will forget something, but it is a lot easier to overlook an issue buried within an encyclopedic demand than to monitor compliance with a tightly drafted one.  

             The same rule applies with virtually all legal drafting.  I recently filed a motion to dismiss for a defendant in a case where the Plaintiff's claim against my client, although highly defensible, was relatively simple.  The Plaintiff's attorney probably spent days drafting a complaint that rivaled war and peace.  They speculated all over the place "upon information and belief," and asserting dozens of far-fetched causes of action, but somewhere along the lines forgot to include the one basic claim that actually made sense.

             With motion practice, all the time lawyers will write tomes, expecting judges (who are, believe it or not, human beings), to parse out the one or two really important aspects of their argument -- which were conveniently placed in the middle of a footnote on page 145 of their brief.

             Keeping things concise and simple (which requires knowing what is important and what isn't), makes everything easier, and more cost effective, for lawyers, clients, and the courts.