New York Business Litigation Lawyer Blog

Plaintiff purchased a used car from a dealer. At the time of purchase, the car was already in need of servicing, and in the week that followed, additional problems arose. Plaintiff took the car to a local repair shop, which informed plaintiff that the car had many problems and was unsafe to drive. Plaintiff returned the car to the dealer for repairs. After the dealer returned the car to the plaintiff, the car was inspected by the same local repair shop that diagnosed the problems. Major problems were still found by the repair shop. Over a period of less than four weeks, repairs were made, but ultimately, the car required a new engine. At each stage of the repairs, plaintiff notified the dealer, but the dealer made no effort to make repairs and expressed no desire to assist the plaintiff. Unable to pay for the new engine, plaintiff sold the car for less than half of its purchase price. In plaintiff’s lawsuit against the dealer, the court determined that at the time that the car was sold it was not fit for its ordinary use and would fail to provide satisfactory and adequate service. The court found that the car had zero value at the time it was sold, and awarded the plaintiff the cost of the car plus plaintiff’s expenses.

Defendant was stopped by store security and charged with larceny after putting a number of items in her bag and then going to a different floor in the store without first paying for those items. Defendant argued, among other things, that there was no indication that she had any intent to steal or otherwise remove the items from the store. The court, critical of the store’s conduct, and noting the absence of any sign restricting the movement of goods between floors, agreed with the defendant and dismissed the charges.

Plaintiff claims she fell in a pothole upon exiting a City bus. The City claims that the bus driver could not discharge the passenger at the bus stop because two cars were parked in the bus stop. In response to plaintiff’s lawsuit, the City sued the owners of the illegally parked cars. The court denied the car owners’ claim that they could not have been the cause of plaintiff’s injury, finding that because the owner of an improperly parked could be liable even in the face of a negligent driver, it is possible that a jury could find the two owners liable.

City contractors cut Bloomingdales’ drainage pipe thinking it was a dead line and installed a cement-encased conduit. After flooding in its basement, Bloomingdales commenced an action against the City and its contractor. Although actions against the City must be commenced within one year and ninety days, the Court of Appeals held that because the injury was not just the cutting of the pipe but the ongoing injury created by the conduit in preventing Bloomingdales access to the drainage pipe, the trespass claim was an ongoing claim and not time barred.

Lawyer sought the dismissal of malpractice claims in connections with lawyer’s representation of client in purchasing a condominium which had a desirable view. The purchase was based largely on that view. Plaintiff claimed that because her lawyer represented the seller of an adjoining property and knew that the buyer of that property would build a building that would block her condominium’s view, her lawyer had an obligation to disclose that information as he was aware that the view was what motivated her to buy the condominium. The court held that because the lawyer knew these facts, and because he owed his client a high-level duty, plaintiff’s claim of malpractice was not dismissed.

Plaintiffs sought a court order finding that the action of the Mayor and City Council in extending their term limits violated the law because they used their positions to garner for themselves a personal advantage. After considering that the City’s Conflict of Interest Board found no conflict in the Members’ vote to extend, even where such vote would impact the jobs and interests of those that took part in the vote, there was no improper conduct by those voting to extend the term limit.

Bank sought the appointment of a referee. Home owner did not appear to oppose the bank’s motion. The court noted that the bank was not the lender but was assigned the mortgage by the lender. The assignment was dated after the foreclosure action was commenced but made effective as of a date prior to the commencement. The question before the court was whether this arrangement was sufficient to give the bank standing to pursue the foreclosure. The court decided that because that the bank had no interest in the mortgage as of the date that the foreclosure action was commenced it could not continue its foreclosure and the court was inclined to dismissed it. The court noted that date that the assignment was recorded was not the relevant issue. All that mattered was which bank held title to the mortgage as of the commencement of the lawsuit. Only that bank could sue for foreclosure.

A court recent denied a moviegoer damages for injuries suffered when he ate an unpopped popcorn kernel. The court held that because there is no such thing as a perfectly popped bag of popcorn, without any unpopped kernels, the moviegoer assumed the risk of such unpopped kernels when he purchased the popcorn.

A business that deals with tangible goods can lock its doors at night to prevent the theft of its business property. But what if a business deals with ideas, secrets and proprietary information that cannot simply be locked up to prevent their theft? What if there are other people, such as employees, that need to have access to that information? How can a business such as this protect itself? This article discusses one practice used to protect a business’ intellectual property, including its trade secrets, from improper use by an employee. Principally, we address the issue of how an employer can limit a departing employee’s ability to use his employer’s secrets or skills learned for the benefit of a competitor. As technology has developed and become easier to use, employees have greater access to a company’s sensitive information and encounter less difficulty in its misappropriation. As such, an employer’s ability to protect its secrets can become difficult to control. Additionally, as businesses become more global, competition by an employee using a past employer’s business secrets is harder to track. Therefore, employers will often seek to control who an employee can work for after he leaves the company, so that the employee’s ability to work at a competitor is limited. This type of control is effected by requiring an employee to sign a non-compete agreement as a term of employment. In this agreement, the employee promises not to work for a competitor (either specifically defined, or generally) of his employer for a specified period of time in a defined geographic area. Although the agreements are disfavored by courts, as they restrict an individual’s right to be gainfully employed, a non-compete agreement will be enforced if (i) it reasonably protects the rights and interests of the employer, (ii) is not overbroad, and (iii) is prepared and executed properly, as discussed at the end of this article. Although a court may eliminate those provisions of a non- compete agreement that are improper, an approach commonly referred to as “blue-penciling” the agreement, courts are reluctant to do so as they do not want to be seen as rewriting the parties’ agreement. If the court sees the agreement as too restrictive, and refuses to blue-pencil, the agreement will be disregarded and of no affect.

Many times, the non-compete agreement will be joined with a non-solicitation agreement, which prohibits the solicitation of the employer’s customers by the departing employee.

As mentioned, some issues that a court will look at include (i) the employer’s interests to be protected, (ii) the duration and scope of the agreement, and (iii) how the agreement is implemented.

Plaintiff commenced an action to recover on a mortgage note. The parties conceded that the property’s foreclosure left a balance due. Plaintiff now sought to recover the balance between the loan amount and the amount recouped by the foreclosure sale. Because the action came five years after the foreclosure sale, it was time barred, as such an action must have been commenced within 90 days from the date of the closing of the foreclosure sale. The court dismissed the case even though the plaintiff styled the case as one for recovery on the notes as opposed to an attempt to recover a deficiency judgment. (September 2008)