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We’re excited to post our first Update on the GordonLaw LLP website.  We hope you will visit us often, as we will do our best to provide a steady diet of updates on a wide range of litigation topics.

Let’s kick things off by going back to law school basics and talk about how to use precedent most effectively.  We all learned at some point in our legal careers that throwing a long string cite of cases at a judge with no supporting analysis is no way to persuade that judge of anything — other than that the string citer had time to hunt around for cases that are arguably relevant.  But Court’s aren’t interested in cases that are relevant, arguably or not; rather, they want to know how their judicial colleagues ruled when presented with similar factual and procedural circumstances.  Counsel for the cross-claim defendant in Fox v. Forest River, Inc., 1:16-CV-0770, NYLJ 1202792208877, at *1 (NDNY, Decided June 16, 2017) found that out the hard way.  In Fox, supra, the plaintiff , Rose Fox, bought an RV from Boat-N-Rv Warehouse (“BNRV”).  Unfortunately, Rose’s RV was (allegedly) plagued with all sorts of problems, including steering (full disclosure:  we at GordonLaw LLP are big-time RVers, and we shudder at the thought of barreling down the highway in a big rig with steering problems).  No doubt a careful and well-prepared camper, Rose also sued Forest River, the manufacturer of the RV, and Ford, which built the chassis.  Now here’s where things get interesting:  while Rose and BNRV were bound by an arbitration agreement, Forest River and Ford, who were not parties to the RV purchase and sale agreement, were not, and they resisted being drug into the arbitration (we’re also big fans of “drug” as the past tense of “drag”).  Not willing to concede the point, BNRV moved to compel arbitration against Forest River and Ford, but NDNY Judge Suddaby held that none of the circumstances that might justify compelling a non-signatory to arbitrate were applicable in this case.  And so the motion was denied.

While the arbitration issues are fascinating, we want to focus on the advocacy.  Here, Judge Suddaby’s reaction to the key case cited by BNRV, Choctaw Gen. Ltd. P’Ship v. Am. Home Assurance Co., 271 F.3d 403 (2d Cir. 2001), was not exactly positive. The Judge held that Choctaw only ruled that a non-signatory party can avail itself of an arbitration clause where its dispute is with a an arbitration clause signatory and the facts are closely intertwined, not the other way around.  In other words, while Choctaw allows a non-signatory to invite itself to the party, it does not authorize a signatory to force a non-signatory to attend that same party (if we can call an arbitration a party).  What we can take away from this is that just because a case bears some factual or procedural or legal relationship to the case you are handling does not make that case a good one to cite.  Judges care about what they do and the impact of their decisions, and their law clerks or law secretaries care about properly and thoroughly evaluating for their bosses the cases you cite.  So when you come across a case that seems to be on point, especially one that is pivotal, make sure it’s on point, and not just relevant.  Your aim is not just to check off the box, “I did research.”  You aim is to win, which means you need to cite not just a case, but the right case.

Let’s do one more:  Maine Service Corp. v. K.D. Hercules Inc., 450196/16, NYLJ 1202789745830, at *1 (Sup., NY, Decided June 2, 2017), which reminds us that when it comes to the New York Lien Law, there’s very little credit for creative lawyering.  In this construction case, Justice Ostrager showed once again that failure to follow the New York Lien Law to a T usually has fairly severe consequences.  In Main Service Corp., the plaintiff  supplied a subcontractor with materials being used on a public project, which meant that State Finance Law 137 kicked in.  That statute allows a supplier such as Maine Service to sue on the payment bond procured by the general contractor provided the supplier has given the general contractor sufficient notice (120 days from the last day the supplier supplied materials) that the supplier has not been paid.  Here, there was no formal notice given, but the supplier, channeling its inner Fred Astaire, danced around the issue by contending that when it requested a two-party check from the general contractor that was a notice to the general contractor that Maine had not been paid.  Clever, but no dice, as Justice Ostrager granted the general contractor’s motion for summary judgment dismissing the Lien Law claims by Maine.

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