Comments on Recent Cases: November 2022

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Part of my work involves reading court decisions to keep abreast of how judges decide the types of cases I handle. Below, I share some thoughts on recent decisions.

Court Excludes Google Maps From Consideration on Summary Judgment

Formal rules govern what evidence litigants may submit in connection with their arguments. While some judges and arbitrators may permit informal submissions in litigation and arbitration, many do not.

For example, in a recent case, the state appeals court in Manhattan affirmed the exclusion of photos from Google Maps that a defendant submitted in support of its motion for summary judgment. The defendant claimed the photos were evidence that it was not responsible for the plaintiff’s accident. But the court affirmed the trial court’s decision to disregard the photos since no one provided sworn testimony that they “fairly and accurately portrayed the sidewalk at the time of plaintiff's accident.”

Cases like this illustrate the formal process litigants must follow to use evidence in litigation.

Court Affirms Default Judgment When Defendant Had No Evidence to Contradict Affidavit of Service

It is important to timely respond to a notice of a lawsuit. While lawyers often grant each other extensions, staying silent carries the risk of a default judgment. And while a defendant may argue that a default is inappropriate because she did not actually receive notice of the litigation, courts may be skeptical of that claim.

For example, in a recent decision, the state appellate court in Manhattan considered a defendant’s argument that it did not receive notice of a lawsuit. The plaintiff submitted an affidavit of service, or a sworn statement by the person who delivered the notice that it did so, and some other “documentary evidence.” The defendant merely denied receiving service, but did not have any documentary evidence. The court affirmed that this was not enough and kept the judgment against the defendant in place.

Cases like this illustrate how important it is to be aware of lawsuits and timely respond to them.

Court Rejects Speculative Expert Testimony

When a defendant seeks summary judgment, she is often telling the court that the plaintiff has no evidence to present at trial that could support his case. Summary judgment motions are difficult to win because, often, plaintiffs in litigation have some evidence. But even so, a defendant can prevail by explaining that the plaintiff’s evidence does not support his case.

For example, in a recent case, a state trial court in the Bronx denied summary judgment to a defendant. Both sides in that case submitted the statements of expert witnesses who discussed whether the defendant caused the plaintiff’s injuries. Presumably, the trial court decided that a trial was necessary to decide which expert was credible. But the state appellate court in Manhattan reversed the decision, holding that the plaintiff’s expert’s statements were “conclusory and speculative” and insufficient to defeat summary judgment.

Cases like this illustrate how a defendant can obtain summary judgment, even when a plaintiff submits expert testimony.

Court Considers Oral Contracts Even When Written Ones Exist On Similar Subject Matter

Agreements may not need to be written down to be enforceable.  And a written contract may sometimes be modified or supplemented by an oral agreement.

This issue arose in a recent high-profile litigation before the state appellate court in Manhattan.  The court reversed the dismissal of a claim by former President Trump’s lawyer, Michael Cohen, that sought reimbursement from the Trump Organization of his legal fees incurred because of government investigations.  The Trump Organization argued that Cohen’s written contract only required reimbursement for fees incurred specifically because of Cohen’s employment by the company.  But the appellate court held that, even if Cohen’s fees were incurred because of his connections to the former president and not his company, he could still have a claim because of an oral contract separate from the written one.

Cases like this illustrate how oral agreements could provide relief to litigants where a written agreement may not.

Client Waives Attorney-Client Privilege By Testifying About Advice of Counsel

Communications between lawyers and clients are generally protected from disclosure in litigation pursuant to the attorney-client privilege.  But there are numerous instances where the privilege may not apply or a client may waive it.  Accordingly, litigants should be careful to make sure they do not expose their confidential communications.

A recent case before the state appellate court in Manhattan illustrated how a client may waive the privilege.  The CEO of a company testified at deposition that he disobeyed a court order because a lawyer told him to do so.  Once he did that, the company’s adversary was entitled to learn about communications with the company’s counsel to test the truth of that statement.  Although the company still refused to disclose those communications, the trial court ordered it to do so and the appellate court mostly affirmed, although it limited the scope of the disclosure.

Cases like this should put clients on notice about when they could waive the attorney-client privilege.