New York Law Notes

Practice point: The distributor is strictly liable even if he has merely taken an order and directed the manufacturer to ship the product directly to the purchaser, and has never inspected, controlled, installed or serviced the product.

Practitioners should note that there is strict liability even if the product’s sale were incidental to the distributor’s installation of it.

Case: Fernandez v. Riverdale Terrace, NY Slip Op 05167 (1st Dept. 2009)

Tomorrow’s issue: Marital property.

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Practice point: Jurisdiction will be obtained over a corporate defendant by service of process on the Secretary of State, regardless of whether the process ever actually reached defendant.

Practitioners should note that while the failure to keep a current address with the Secretary of State, pursuant to Business Corporation Law § 306(b)(1), is generally not a reasonable excuse for default under CPLR 5015(a)(1), relief from a default may be granted pursuant to CPLR 317 where the court finds that a defendant did not personally receive notice of the summons in time to defend and has a meritorious defense.

Case: Shanker v. 119 E. 30th, Ltd., NY Slip Op 05165 (1st Dept. 2009)

Tomorrow’s issue: Defective products.

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Practice point: Pursuant to CPLR 311(a)(1), service upon a corporation may be made by delivering the summons to an officer, director, managing agent, general agent, cashier, or assistant cashier.

Practitioners should note that, in addition, service may be made upon someone whom the corporation cloaks with authority.

Case: Aguilera v. Pistilli Constr. & Dev. Corp., NY Slip Op 04844 (2d Dept. 2009)

Monday’s issue: Jurisdiction.

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Practice point: A § 50-h examination is a condition precedent to bringing an action against a municipality, and noncompliance is ground for dismissal.

Practitioners should note that failure to submit to the examination may be excused in exceptional circumstances, such as extreme physical or psychological incapacity.

Case: Steenbuck v. Sklarow, NY Slip 04890 (2d Dept. 2009)

Tomorrow’s issue: Service of process.

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Practice point: If service of process has been improper, any resulting default judgment is a nullity.

Practitioners should that that the fact that defendant had actual notice of the suit, and no meritorious defense, does not require a different result.

Case: Ruffin v. Lion Corp., NY Slip Op 04883 (2d Dept. 2009)

Tomorrow’s issue: Municipalities Law.

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Practice point: The absence of proximate cause requires dismissal of a legal malpractice action regardless of the attorney’s negligence.

Practitioners should note that an attorney may not recover fees for legal services performed in a negligent manner even where that negligence is not a proximate cause of client’s injury.

Case: Kluczka v. Lecci, NY Slip Op 04867 (2d Dept. 2009)

Tomorrow’s issue: Motion practice.

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Practice point: For the purposes of § 240(1) liability, a fire escape could be the functional equivalent of a scaffold.

Practitioners should note that the fact that the fire escape is a permanent structure is not determinative.

Case: Gomez v. City of New York, NY Slip Op 04759 (1st Dept. 2009)

Tomorrow’s issue: Legal malpractice.

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Practice point: Defendant’s negotiating the potential purchase of an automobile by email and telephone, which was initiated by plaintiff after seeing the car on defendant’s website, does not constitute transacting business in New York.

Practitioners should note that, since the car was to be picked up in Texas, there was no contract to supply goods or services in New York. Defendant’s website, which described available cars and featured an email link but did not let a customer purchase a car, was not a projection of defendant into New York.

Case: Arouh v. Budget Leasing, Inc., NY Slip Op 04751 (1st Dept. 2009)

Monday’s issue: Labor Law.

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Practice point: Full disclosure is required of everything material and necessary to the defense of an action, pursuant to CPLR 3101[a], which means that there must be disclosure of any facts bearing on the controversy.

Practitioners should note that, in a defamation action, defendant is entitled to discovery to establish the defense of truth to plaintiff’s claims, and to defend against plaintiff’s assertion of damage to his reputation.

Case: Rivera v. NYP Holdings, Inc., NY Slip 04706 (1st Dept. 2009)

Tomorrow’s issue: Long-arm jurisdiction.

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Practice point: While a plaintiff’s perception, standing alone, does not create an attorney-client relationship, a formal retainer agreement is not imperative.

Practitioners should note that, in order to establish the relationship, there must be an explicit undertaking to perform a specific task.

Case: Terio v. Spodek, NY Slip 04412 (2d Dept. 2009)

Tomorrow’s issue: Discovery.

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