Procedure
November 4, 2025
By Laura Trachtman
Have you ever stopped to think about unjust enrichment as a cause of action? It’s wild. It’s neither a breach of contract cause of action nor a tort, and it’s grounded in equity. The entire purpose of the cause of action is to prevent unfairness.
What is unjust enrichment? The Court of Appeals in Columbia Mem’l Hosp. v. Hinds, 38 N.Y.3d 253, 275, 192 N.E.3d 1128, 1137 (2022) sets forth the following important notes on the cause of action (all internal citations and quotations removed):
- Unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice in the absence of an actual agreement between the parties
- Unjust enrichment claims are rooted in the equitable principle that a person shall not be allowed to enrich [themselves] unjustly at the expense of another
- The essential inquiry in any action for unjust enrichment … is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered
- To recover under a theory of unjust enrichment, a litigant must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered
- An unjust enrichment claim is undoubtedly equitable and depends upon broad considerations of equity and justice and, to determine if it is against equity to permit a party to retain what is sought to be recovered, courts look to see if a benefit has been conferred on the defendant under mistake of fact or law, if the benefit still remains with the defendant, if there has been otherwise a change of position by the defendant, and whether the defendant’s conduct was tortious or fraudulent
What is a quasi-contractual cause of action? It’s a cause of action where one party receives the benefit of another party’s efforts. It doesn’t require mutual assent, because it’s not an actual contractual cause of action.
What’s equity, and what’s an equitable principle? Simply put, equity is about fairness. In a case involving unjust enrichment, the important inquiry is whether it’s fair to allow the party which received the benefit to keep it. Put another way, the important inquiry is whether allowing the party to keep the benefit is unfair to the person conferring the benefit.
There also must be a relationship between the party who was enriched and the party who did the enriching that could have caused reliance or inducement. While there needn’t be a fiduciary relationship, at least some special relationship needs to be in existence.
Where does unjust enrichment fit in? That’s the big question. It doesn’t result from an oral agreement where one party stiffed another: that’s a contractual cause of action. It doesn’t result from one party stealing from another: that’s a tortious cause of action. It doesn’t result from one party giving something to another and then changing their mind, either. Instead, it exists in the narrow space between tort and contract where one party receives a benefit from another party and it simply would not be fair to allow the receiving party to keep the benefit.
The pattern jury instructions are helpful in understanding this entire cuckoo bananas cause of action:
While unjust enrichment is termed a quasi-contractual cause of action, it is not based on a contract or promise at all; it is an obligation that the law creates, in the absence of any agreement, when the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience he or she ought not to retain it. In such circumstances, equity merely intervenes to deem the parties in privity to each other, E.J. Brooks Company v Cambridge Security Seals, 31 NY3d 441, 80 NYS3d 162, 105 NE3d 301 (2018). The contract is a mere fiction, a form imposed in order to adapt the case to a given remedy; the law creates it, regardless of the intention of the parties, to assure a just and equitable result, E.J. Brooks Company v Cambridge Security Seals, supra; Clark-Fitzpatrick, Inc. v Long Island R. Co., 70 NY2d 382, 521 NYS2d 653, 516 NE2d 190 (1987); Core Development Group LLC v Spaho, 199 AD3d 447, 157 NYS3d 416 (1st Dept 2021) (unjust enrichment imposes obligation in equity to prevent injustice, in absence of actual agreement between parties).
So, why bother to plead unjust enrichment? It’s a good idea to plead unjust enrichment in situations where you’re not sure whether your contractual cause of action is going to bear out successfully, or you don’t have one. It also works well when you’re not sure about a tortious cause of action, like conversion, will succeed. I usually see it coupled with breach of fiduciary duty, which makes sense, as it would be inequitable to allow someone to retain a benefit gained which they haven’t earned.
In sum, unjust enrichment is a tricky cause of action, but it’s one that I really like, because if all other causes of action fail, but if the Court thinks that it is unfair to allow the other side to retain the benefit at issue, it’s entirely possible that a client could receive restitution.
July 15, 2025
By Laura Trachtman
One of the longest and most expensive parts of the litigation process is discovery. For the uninitiated, discovery is the process by which parties “discover” evidence from the other side. This can take a variety of forms: written, verbal, audiovisual recordings, and inspection of locations. My aim today, however, is to focus on written discovery, and what you can and can’t ask for.
The limits of written discovery were helpfully set forth in a recent Second Department case. There, the Court held:
CPLR 3101 (a) requires “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” (see Hamed v Alas Realty Corp., 209 AD3d 628, 629 [2022]). “ ’The words, material and necessary, are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial’ ” (McAlwee v Westchester Health Assoc., PLLC, 163 AD3d 547, 548 [2018] [internal quotation marks omitted], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). “ ’However, the principle of full disclosure does not give a party the right to uncontrolled and unfettered disclosure, and the trial courts have broad power to regulate discovery to prevent abuse’ ” (McAlwee v Westchester Health Assoc., PLLC, 163 AD3d at 548 [internal quotation marks omitted], quoting Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531 [2007]).
Harrington v. New York City Transit Authority, 223 AD3d 787 (2d Dept.2024).
OK great, but what does that mean? In short, it means that both sides have to produce anything that is material and necessary in order to either defend or prosecute the case.
What does material and necessary mean? Material and necessary means anything concerning the case that will assist in preparation for trial for either side. To break it down further: what needs to be established at trial is the injury that is the subject of the lawsuit, the damages stemming from the injury, and the liability for the damages. However, as with all aspects of the law, this is not unlimited.
What are the limits? There is no right to uncontrolled and unfettered disclosure. An excellent example of this is addressed in the Harrington case, above. The plaintiff was directed to evacuate a city bus when the fare box began smoking. While evacuating, she slipped in a substance inside the bus and fell, sustaining injuries.
During discovery, her attorneys requested information concerning the fare box and its upkeep, which then became the subject of a motion to compel, which was denied by the trial court. On appeal, the Appellate Division affirmed the lower court’s finding, noting that “[h]ere, contrary to the plaintiff’s contention, the condition of the fare box at the front of the bus was not a proximate cause of the plaintiff’s accident, but, rather, merely furnished the occasion for the plaintiff’s exit from the bus and her alleged slip and fall due to a wet substance on the floor of the bus (see Sheehan v City of New York, 40 NY2d 496, 502-503 [1976]; Landsman v Tolo, 194 AD3d 1034, 1035 [2021]). Accordingly, the requested discovery regarding the fare box was not material and necessary to the prosecution of the action, and the Supreme Court providently exercised its discretion in denying the plaintiff’s motion to compel such discovery (see State Farm Mut. Auto. Ins. Co. v RLC Med., P.C., 150 AD3d 1034, 1035 [2017]).” In other words, the fare box, which wasn’t why the plaintiff slipped and fell, had no bearing on the controversy.
What does this mean in practical terms? It means that while, at trial, the smoking fare box as the reason for the evacuation of the bus is pertinent, it is irrelevant to how the plaintiff was hurt. , the damages incurred as a result of the injury, or whether the MTA is liable for having a wet substance on the floor of the bus.
This is important because it is a clear example of what is and is not material and necessary for the prosecution and defense of the case: As it is neither the cause of the injury, the damages incurred as a result of the injury, or the establishment of liability for the injury, it is not discoverable.
June 17, 2025
By Laura Trachtman
The Supreme Court recently denied a petition for certiorari in Nicholson v. W.L. York, Inc. d/b/a Cover Girls, et al, and refused to hear the claims of the petitioner, Chanel Nicholson. In so doing, the Supreme Court has again flouted clear precedent and failed to allow Nicholson access to the courts to remedy a discriminatory action.
In an appeal from the Fifth Circuit, which covers Texas, Louisiana and Mississippi, Nicholson asked the Supreme Court to overrule the Circuit Court’s determination that her claims were time barred. When the Supreme Court voted to refuse to hear her appeal, Justice Jackson, with Justice Sotomayor joining, wrote a pointed dissent.
First, the facts. Nicholson, a Black woman, worked as an exotic dancer in several clubs in the Houston area, starting in 2014. Race discrimination pervaded the clubs where she worked, and on multiple occasions she was refused entry to the clubs to work, with management stating that there were too many Black women already working. This was in contravention of her employment contract, which stated that she could make her own hours, and 42 USC § 1981, which is the federal cause of action for claims of intentional race discrimination in contracting. Clearly, the basis for which she was refused access to work – that there were too many Black women already working – was applied only to women of color, and not to white women, hence the basis for a discrimination lawsuit.
Next, the precedent. The statute of limitations for § 1981 actions is four years, and the claim accrues on the date that the act occurred. For every new discriminatory act, the statute of limitations restarts, but sometimes, actions occur that are not, in and of themselves, discriminatory, but rather reflect the “continued effects” of earlier discriminatory actions. Those actions do not restart the clock. And that’s where the trouble starts.
The Fifth Circuit determined that each time Petitioner Nicholson was refused work at the clubs, it did not constitute a new discriminatory act but was merely a continued effect of earlier discriminatory actions, and did not restart the clock. Mind you, Nicholson was refused work solely due to her race, as white women were allowed into the club to work at times when she was turned away. Accordingly, the Fifth Circuit determined that Nicholson’s claims were time barred, and dismissed her case. When Nicholson applied for a writ of certiorari to the Supreme Court, it was denied. While the Supreme Court isn’t required to grant cert to every Petitioner who requests that the Supreme Court review their case, the Supreme Court could have reviewed this case and corrected the Fifth Circuit’s obviously erroneous decision, but chose not to. That’s where the problem lies.
Why? Because when a new act of discrimination occurs, it restarts the clock. Not only that, but if the act is one in a continuing course of action, then not only does the most recent act start the clock, it can drag the previous acts within the statute of limitations for certain causes of action. This is the exact opposite of what the Fifth Circuit held.
In other words, the Fifth Circuit should have held that the most recent acts of discrimination restarted the clock – take the most recent act and count backwards. What the Fifth Circuit actually did was take the act that was furthest away in time and go forward. This is contrary to the established law of the land, and should be wildly disturbing to anyone who’s paying attention. The Supreme Court should have granted cert and overruled the Fifth Circuit’s decision, but they did not.
The reason I personally am so upset about this is for a couple of reasons. One, for better or for worse, I trust in our legal system to do what’s right for the American people. Our legal system is built on precedent, and both of the instances I discuss above – the Fifth Circuit’s incorrect analysis and the Supreme Court’s failure to correct the same – constitute a wildly alarming detour from precedent, which serves to undermine the entire basis for our legal system. Furthermore, this isn’t even a hard issue to decide – it’s not Delaware Chancery law or anything, it’s fairly basic, which means one of three things: 1) that the Fifth Circuit and the Supreme Court just didn’t care whether they were issuing a correct decision, or 2) they didn’t understand the legal issues, or 3) the worst option, that they know exactly what they’re doing and are doing it on purpose to disenfranchise our vulnerable citizens.
Finally, this is not the first time that the Supreme Court has deviated from settled precedent. Yes, I’m talking about Roe v. Wade. If our Supreme Court fails to respect precedent, in violation of our legal system and their oath to “do equal right to the poor and to the rich”, it’s a slippery slope to chaos and the end of our society as we know it.
June 3, 2025
By Laura Trachtman
Most clients know that their communications with their attorneys are protected by attorney-client privilege. In New York State, this protection is enshrined in CPLR § 4503. However, as with all things in the law, privilege isn’t that simple.
Why are we talking about this? Because in the discovery phase of litigation, when a party produces documents to the other side, the attorney must also disclose the documents that she is not producing. This is called a privilege log and, in New York State courts, is governed by CPLR § 3122(b), which specifies what the privilege log must include: “(1) the type of document; (2) the general subject matter of the document; (3) the date of the document; and (4) such other information as is sufficient to identify the document for a subpoena duces tecum.”
However, there are exceptions to that rule, such as those set forth in the Commercial Part Rules as enshrined in 22 NYCRR 202.70, Rule 11-b(b), which allows for a categorical approach, as opposed to document-by-document approach, which lists every.single.document in the privilege log.
What is a categorical approach to a privilege log? Is it defined as “any reasoned method of organizing the documents that will facilitate an orderly assessment as to the appropriateness of withholding documents in the specified category.” OK, but what does that mean? The NYC Bar Association has issued this document which helpfully provides both guidance and a model privilege log for those who remain confused. Generally speaking, a categorical approach to a privilege log means sorting documents into broad categories and identifying them by using a date range, the names of individuals who sent or received the communications, and a general description of what the documents are (“communications with outside counsel”) (“communications with in-house counsel”).
Boy howdy does this seem like a reasonable way of organizing documents, and is a big time-saver, to boot. For anyone who’s ever wanted to gouge out their eyeballs while drafting a spreadsheet accounting for each and every document withheld on the basis of privilege, a/k/a a document-by-document privilege, the categorical approach might seem like a god-send.
But if I’ve learned nothing else in writing this blog, I’ve learned that there are rules to every shortcut. And accordingly, here are the rules:
- An attorney can’t unilaterally decide that she wants to use the categorical approach – counsel for all parties must agree upon the approach, although the Commercial Division’s preference is for categorical designation.
- When counsel for all parties do agree upon the categorical approach, each privilege log must be accompanied by a certification pursuant to 22 NYCRR § 130-1.1 specifying:
- the facts which support the privileged or protected status of the information contained within each category;
- The steps taken to identify the documents – whether each document was reviewed or whether documents were “sampled” (a couple of documents were inspected at random); and
- If the documents were sampled, how the sampling was conducted.
Rule 1: parties must agree. This is going to be tough to start, because the plaintiff is going to want to know exactly what documents are going to be withheld and based on what privilege.
- HOWEVER No. 1, if the requesting party refuses to agree to the categorical approach, AND the court refuses to issue a protective order, upon good cause shown, the court can allocate costs for the document-by-document approach to the party who refused to allow the categorical approach. (Rule 11-b(3)).
- HOWEVER No. 2, even with the document-by-document approach, the court allows for the following shortcut for email chains: “(i) an indication that the e-mails represent an uninterrupted dialogue; (ii) the beginning and ending dates and times (as noted on the e-mails) of the dialogue; (iii) the number of e-mails within the dialogue; and (iv) the names of all authors and recipients – together with sufficient identifying information about each person (e.g., name of employer, job title, role in the case) to allow for a considered assessment of privilege issues.”
Rule 2: categorical designation must be certified. The first important note is that 22 NYCRR 130-1.1 is the statute that governs sanctions. In other words, if you make this certification and you’re being untruthful and the court finds out, both you and your client could suffer significant consequences.
Rule 2a: facts which support the category. The certification must state why the documents are privileged – “communications involved attorneys” or something similar.
Rule 2b: Steps taken to identify the documents. How were these documents, out of all of the documents involved in the case, selected as privileged? “Search of attorney’s email inbox for client’s name” seems like it would be a good start.
Rule 2c: If sampled, describe how. Simply state the steps taken to populate the sample. “Every 5th email was reviewed to see whether it was attorney-client privilege.”
As always, while the categorical approach is an excellent shortcut, the attorney must be careful when utilizing it, or else the attorney can expose both herself and her client to sanctions. Similarly, the rules encourage the parties to work together on discovery issues, which is in line with the court’s general requirements, the ethical suggestions re: civility, and general good practice for attorneys. I’m all for raining hellfire down on opposing counsel when they need an attitude check, but it’s just as important to remember that we’re all doing our jobs and sometimes we need to catch a break.
May 20, 2025
By Laura Trachtman
There are times when you’ve brought a motion before a judge, and you strongly believe that the judge wrongly ruled against your client. When this happens, you have a couple of options. You can notice an appeal (which must be done within 30 days of the filing of the Notice of Entry), you can make a motion to reargue, and you can make a motion to renew. Please note that these are conjunctives, not disjunctives, so you can take all of these steps if you can satisfy the requirements.
Why are there so many different options? Great question. Each serves a different purpose.
The appeal is simple – you’re going to ask the appellate court to review the lower court’s decision and see if it was properly decided.
- The pros of appealing is that your claim will be reviewed by a panel of appellate division judges, and I have usually been fairly impressed with their legal acumen.
- The cons are that it’s both expensive and time consuming. I once waited for 18 months to have an appeal decided after it was fully briefed and oral argument was made before the panel.
- Also, if you request oral argument, you’d better bring your A game, because the judges on the appellate division do not play around and the oral arguments are livestreamed, so you can make a fool of yourself in front of everyone tuning in to spectate.
The motion to reargue is based on CPLR § 2221(d), and applies where a judge misapprehended a matter of fact or law. In other words, if you think the judge misunderstood something in their Decision + Order, you can make this argument and see if this second bite at the apple helps them to better understand the point you’re trying to make.
- The pros of making a motion to reargue is that it costs no more than the filing fee for the motion.
- The cons are that I find making a motion to renew to be a bit awkward. You’re literally telling the judge that you think they were wrong, which doesn’t always go over so well – especially if you’re going to continue to appear before the same judge.
- The other sticky wicket on a motion to reargue is that there’s no appeal from the decision on a motion to reargue, so your best bet is to both file an appeal and a motion to reargue as a belt-and-suspenders approach, and withdraw the appeal if you win the motion to reargue.
The motion to renew is based on CPLR § 2221(e), and is based on new information not previously known to the movant at the time the motion was made: either the law has changed or new facts have emerged. In other words, if you learned new information after you submitted your motion, you can make a motion to renew. You must also provide a reasonable justification for why the new information included in the motion to renew was not included in the prior motion to ensure that the new information is actually new.
- The pros of a motion to renew are that it can be very effective, and in my experience, a judge is more likely to grant a motion to renew than one to reargue. Like its statutory sibling, the motion to renew is also cheap: the cost of a motion filing fee.
- The cons are that elements of a motion to renew are much more stringent than a motion to reargue. You must have new information — either a new legal argument or new facts, and you must be specific in both making your argument about the new information and explaining why this information had not previously been submitted. In fact, the court lacks discretion to grant renewal without a justifiable excuse for the failure to present new facts on the prior motion – in other words, the court literally cannot grant renewal if you haven’t satisfied the prerequisites.
- You can appeal the decision on a motion to renew, which gives you a little extra time to pull yourself together if you end up losing and you haven’t submitted an appeal on the underlying motion.
Both the motion to renew and reargue must be clearly labeled by the movant, and that can be a bit tricky composition-wise, as often facts pertain to both a motion to renew and one to reargue. I personally love drafting CPLR § 2221 motions because they are so persnickety, and I find rising to the challenge of clear and careful drafting eminently satisfying.
