Thursday, March 13, 2014

Compliance Conferences and the Impending Note of Issue

This week brought another Compliance Conference with a pro se litigant who refused to show up for the court appearance. Even though the litigant filed the case, he has refused to appear for court appearances because at the conferences there isn’t always a judge to hear his gripes and complaints about my client and the system.

As this was a New York conference, the Court has finally had it with his tactics, giving us a Note of Issue date and once again directing that the other party answer the discovery demands that had been served months ago. The Court’s own order includes the provision that if he fails to file the Note of Issue, the Court will dismiss the case for failure to prosecute the action. (N.Y. C.P.L.R. 3216)

The standard form also provides for other discovery to be completed and vacates any stays that may have been in force. (N.Y. C.P.L.R. 3211, 3212 & 3213) Even though the order was entered by the court and served upon the other party, when he received it, he immediately called me to tell me it was not an official and binding order upon him because he doesn’t believe it was signed by a judge. My only response was to wish him luck making that argument to the Court when he inevitably refuses to comply with the Order, the case is dismissed, and he attempts to appeal the dismissal to the AppellateDivision.

Unfortunately, while all of this process and delay goes on, my client is left with a case that has lingered far too long, even though it is meritless, and is just one more headache that he does not want to deal with.

Monday, March 10, 2014

Disclosing Documents: Necessary Evil or Fodder for Drama?

It never ceases to amaze me when I have to sit in Court and listen to two attorneys fight over discovery. Even if you turn the sound off, you can tell exactly what is going on. The attorneys are overly agitated about the prospect of providing a document/demanding a document and the judge is bored and angry that they have to sit through the entire dispute. It goes on for a while, with the attorneys pacing around, making accusations, dramatically gesticulating and generally putting on a show for the onlookers in the Court. And after it is all done, and the judge directs the party to provide the document because it is clearly relevant and this was yet another exercise in futility, the attorneys go outside in the hall, have a good laugh, shake on it and then venture off into another cold New York City morning.

After getting up far too early because of the time change, it was the theater of the absurd that greeted me in Court this morning.

Friday, March 7, 2014

Breach of Contract Action in New York Civil Court



Plaintiff commenced this breach of contract action against Defendants, alleging that he was never given possession of a vehicle that he purchased from the Defendants.

At trial, Plaintiff testified that in December 2012, he met with Defendant, the principal of Corporate Defendant, a used car wholesaler, to purchase a 2008 Lexus GX470. On December 5, 2012, Plaintiff paid Defendant $26,510.00 in cash for the vehicle plus an additional $350 fee to purchase the car at Manheim Auction in New Jersey. Plaintiff noted that he did not receive the car at that time, and was told by Defendant that it would take 20 to 45 days to obtain the title to the car.

Plaintiff averred that in January 2013, he received the title and car keys from Defendant but was not given the car because sales tax remained outstanding. Plaintiff stated that during the following month, he paid Defendant $2,351.00 in sales tax, and received the retail certificates of sales; yet, he was still not given possession of the vehicle. Consequently, he commenced this action.

On cross-examination, Plaintiff testified that in 2009, he purchased his first vehicle from Corporate Defendant, and had only been to Defendant's business twice that year. He also denied ever traveling to Bordentown, New Jersey- the location of Manheim auction.

After Plaintiff rested, Defendants called Defendant, the owner of Corporate Defendant. Defendant testified that he knew Plaintiff since he was "in a stroller," and was familiar with his family. Defendant noted that Plaintiff frequented his business, and that he had taken him to Manheim auction on at least two occasions to purchase cars. In particular, Defendant recalled that in December 2012, Plaintiff informed him that he was looking for a new vehicle since his car had been destroyed during Hurricane Sandy. Defendant requested that Plaintiff produce his driver's license so that he could make a copy. Defendant explained that he needed a copy of the identification so that Plaintiff could be permitted to enter Manheim auction (Defendant's Exhibit "B" in evidence).

Defendant recounted that on the morning of December 5, 2012, he and his business partner picked up Plaintiff from his apartment, and traveled to Bordentown, New Jersey for the auction. Defendant testified that Plaintiff gave him permission to bid on a Lexus truck; and paid him in cash. After he learned that Plaintiff had the winning bid, Defendant signed a green receipt, and the keys were given to Plaintiff. Defendant testified that before Plaintiff drove to the security gate with the vehicle, he advised Plaintiff not to leave the auction using his Pennsylvania license plate because he did not have car insurance. Defendant averred that Plaintiff would be solely responsible if the police stopped him for not having insurance. According to Defendant, Plaintiff left with the truck, while he and his business partner stayed at the auction to bid on other cars.

He further testified that on approximately December 27, 2012, he received the title to the Lexus, and subsequently gave it to Plaintiff. However, Defendant told Plaintiff that he still needed to pay New York sales tax, and complete some more paperwork. Soon thereafter, Defendant stated that Plaintiff told him that he parked his car near his apartment building, but could no longer find it. Defendant explained that he then ran a "Car Fax" report on Plaintiff’s Pennsylvania plate number, and learned that the car was reported stolen on January 29, 2013 by an unidentified person (Defendant's Exhibit "D" in evidence). Defendant then advised Plaintiff to go to the local police precinct because a sheriff could have picked up the car. When he returned to Corporate Defendant, Plaintiff told Defendant that the police refused to give him information because the car was not in his name.

Defendant stated that Plaintiff subsequently paid the outstanding sales tax, and filled out the necessary paperwork to get the retail certificates of sale. Copies of the certificates, dated February 4, 2013, were admitted into evidence.

It is well settled that the determination of a trier of fact as to issues of credibility is given substantial deference. Significantly, a trial court has the opportunity to observe and evaluate the testimony and demeanor of the witnesses, which affords it a better perspective from which to assess their credibility (Vizzari v. State of NewYork, 184 AD2d 564 [2d Dept. 1992]; Kincade v. Kincade, 178 AD2d 510, 511 [2d Dept. 1991]).

In the instant case, this Court determines that Defendant credibly testified that Plaintiff traveled with him and his business partner to Manheim auction in December 2012 to purchase the 2008 Lexus GX470. In fact, Plaintiff acknowledged that Defendant bought the car at the auction. On the other hand, Plaintiffs testimony was vague and bereft of details as to how he selected the vehicle. Plaintiff also failed to submit probative evidence regarding the material terms of his alleged contract with the Defendants.

Moreover, it is evident that Plaintiff, who had previously purchased cars at the auction, was aware of the risks of driving the uninsured vehicle out of the auction without the proper registration and license plate. This Court also observes that Plaintiff claimed that Defendants never gave him possession of the car; yet, he neither filed a police report nor filed a complaint with the District Attorney's office. In fact, Plaintiff apparently paid the sales tax and signed the Retail Certificates of Sale in February 2013, only after discovering that the car was reported stolen on January 29, 2013.

Accordingly, based upon the above, Plaintiff has failed to make a prima facie case. The Summons with Endorsed Complaint are hereby dismissed.

This constitutes the Decision/Order of the court.

Dated: March 4, 2014

Wednesday, March 5, 2014

Why Won't My Attorney Give Me His Email Address?

With all of the technology available to law firms, I am still amazed when I have a consultation with a prospective client whose primary complaint is that their current lawyer is not contacting them or sharing information with them. Often, while sitting down at our initial meeting, I am forced to bring out a computer and pull up information for them about their case, all of which is publicly available, but which comes as a surprise to them.

In the past few weeks, this has included the startling revelation that a motion, which the client thought was still awaiting a decision, had been decided (and decided against them), despite the attorney telling them that there was no decision yet. The prospective client was quite shocked when I was able to pull up the decision on my computer and print out a copy for them (from what I can tell, they left my office with the copy and went straight to their now-former attorney with that copy).

A second client came to me because their current attorney was just plain caught in the dark ages. She was a friend of one of my clients, who had told her about our electronic sharing of documents and ability to collaborate quickly and efficiently. The prospective client’s attorney had a paralegal, with what seemed to be a typewriter for document creation, and would often have the client print out Adobe .pdf documents (bank statements, etc.) from online and physically deliver them to the office so that the attorney could review them. We discussed how much in professional fees could be saved by simply sharing the .pdf electronically and using the built in “Search” functions of the document to speed up review.

With all due respect to the old ways of doing things, the technology available today allows for a streamlined process of sharing documents and collaboration between attorneys and their clients. It makes no sense to print out documents that are generated in an electronic format, unless you really hate the environment and have a passionate desire to pay lots of money to office supply stores for reams of paper.