Procedure
June 3, 2026
By Laura Trachtman
One of my favorite scenes from Legally Blonde is when Elle and Paulette go to retrieve Paulette’s bulldog Rufus. If you’ve seen the movie, you know what I mean: Elle confronts Paulette’s ex, Dewey, pelts him with legal jargon that’s totally inapplicable to the situation, and then gets down to business. Elle tells Dewey that as he has kept the residence he and Paulette formerly shared, Paulette is entitled to full canine property ownership. As Dewey stares at Paulette and Elle blankly, Paulette snaps, “I’m taking the dog, dumbass!”
While seeing Paulette and Elle drive off with furbaby Rufus (and Bruiser, of course) warms the cockles of my dog-loving heart, what they did is not actually legal. Setting aside jurisdictional issues, mainly because I’m not barred in Massachusetts where the movie is set, the correct way to recover Baby Rufus is to initiate an action for the recovery of chattel, which just means personal (as opposed to real) property. This is known in common law as replevin.
Replevin, along with most of our legal terminology, comes from the Latin: in this instance the verb plebere, to give surety. Somewhere down the line, the French turned it into replevir, from re- + plevir, which has the same meaning. And that’s enough linguistics for a law blog.
To demonstrate one’s entitlement to replevin, there are a few procedural steps which must be followed. First, the true owner of the chattel must demand its return. That’s when the three-year statute of limitations starts running. As an interesting aside, this is only applicable in situations where a good-faith possessor of the chattel is actually in possession; if a thief has the chattel, the statute of limitations runs from the time of the theft.
Getting back to Legally Blonde: if Dewey wanted to keep Rufus, then Paulette should sue Dewey for replevin. In so doing, she would have to demonstrate that she is the owner of the precious baby Rufus. She could do this by providing a receipt for Rufus’ adoption or purchase. Paulette would also have to demonstrate that Dewey has unlawfully withheld Rufus from Paulette.
I know what you’re thinking: once she files the complaint, is Paulette required to wait for ages while the court determines that Rufus legally should be home with her? Nope! Paulette could immediately make a motion for prejudgment seizure. In order to obtain an Order of Seizure, Paulette would have to move pursuant to CPLR § 7101 for said Order, supply an affidavit clearly setting forth the facts upon which Paulette bases her entitlement to Rufus, as well clearly identify Rufus (in case there’s another bulldog at the trailer, for example). Paulette, as the plaintiff, would also have to demonstrate that she has met all of the detailed requirements set forth in CPLR §§ 7102(c) and (d)(1). That includes posting a bond in the amount of Rufus’ value, and explaining why it is probable that Paulette will succeed on the merits, in other words, prevail. Obviously, Paulette must also put Dewey on notice that she is making this motion. (There is a way to make the motion without notice, but I’ve already digressed enough.) If Paulette shoulders this burden, the court is well within its discretion to grant an Order of Seizure.
Dewey can oppose Paulette’s motion for prejudgment seizure by interposing defenses. In so doing, should Dewey assert a superior claim to Rufus, he could defeat the provisional remedy that Paulette seeks. Dewey may also seek to reclaim Rufus via CPLR § 7103. But, Dewey doesn’t seem to be a successful man based on his appearance and poor personal hygiene, so I doubt he’d make many motions.
So long as Paulette can legally demonstrate that Rufus is indeed her personal property, she’ll be able to keep him forever and ever and throw him a birthday party each year for the rest of his life. What, like it’s hard?
May 5, 2026
By Laura Trachtman
Normally, I write about legal issues that I’m dealing with in my own practice, because it’s convenient and interesting for me. Today, however, I’ve got a bee in my bonnet about the prima facie tort doctrine.
To start, what is a prima facie tort? I’m so glad you asked! This doctrine provides a remedy for intentional harm caused by otherwise lawful conduct when no other traditional tort applies. In other words, the prima facie tort steps in when a defendant’s malicious intent transforms lawful acts into actionable wrongs and the defendant’s conduct is inexcusable or unjustifiable.
To clarify that weighty definition, let’s explore the history of prima facie tort and the limitations on the cause of action.
History of the Prima Facie Tort
The U.S. Supreme Court case of Aikens v. Wisconsin, 195 U.S. 194, 204, 25 S.Ct. 3, 5, 49 L.Ed. 154 (1904), which was authored by Justice Oliver Wendell Holmes, is arguably the most famous case addressing prima facie tort (if only because of its author). Holmes stated in pertinent part: “Prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law … requires a justification if the defendant is to escape.”
The New York Court of Appeals in Curiano v. Suozzi, 63 N.Y.2d 113, 117, 469 N.E.2d 1324, 1327 (1984) provided additional illumination:
Some years ago, this court recognized the general principle that harm intentionally inflicted is prima facie actionable unless justified (see Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 70 N.E.2d 401; American Guild of Musical Artists v. Petrillo, 286 N.Y. 226, 36 N.E.2d 123; Opera on Tour v. Weber, 285 N.Y. 348, 34 N.E.2d 349, cert. den. 314 U.S. 615, 62 S.Ct. 96, 86 L.Ed. 495). That principle has developed into the specific cause of action of prima facie tort consisting of four elements: (1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful (Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 332, 464 N.Y.S.2d 712, 451 N.E.2d 459; ATI, Inc. v. Ruder & Finn, 42 N.Y.2d 454, 458, 398 N.Y.S.2d 864, 368 N.E.2d 1230). While prima facie tort may be pleaded in the alternative with a traditional tort, once a traditional tort is established, the cause of action for prima facie tort disappears (Board of Educ. v. Farmingdale Classroom Teachers Assn., 38 N.Y.2d 397, 406, 380 N.Y.S.2d 635, 343 N.E.2d 278, supra).
This decision is very helpful, as it provides three important takeaways: (a) a clear explanation of the prima facie cause of action; (b) a description of the requisite elements to demonstrate entitlement to relief; and (c) an incredibly important limitation on the pleading of the cause of action.
Limitations on the Cause of Action
In case you missed it above, there is an important limitation on prima facie tort when it is pled in the alternative: a claim grounded in prima facie tort cannot be maintained if the primary cause of action is established. This makes sense, because a cause of action for prima facie tort can only be maintained in the absence of another tort. Of course, if that other cause of action isn’t established, then it’s a good thing you pled prima facie tort so the defendant doesn’t get away with bad conduct.
Another limitation on the claim is that the motivation for the actions which form the foundation for the prima facie tort must be malice, and nothing else. By way of example, “a claim for prima facie tort cannot be sustained where the plaintiff is alleged to be motivated by profit as well as malicious intent” Squire Records, Inc. v. Vanguard Rec. Socy., Inc., 25 AD2d 190, 191 (1st Dept 1966). That also makes sense, because the intent to harm another itself is the entire justification for the cause of action. If the defendant can provide another reason to explain away the action – greed, jealousy, or what have you – then it’s not a prima facie tort.
In this cause of action, you must also plead special damages. What are special damages, you ask? Great question! Luckily, we get an assist from the Second Department in Shahid v. Slochowsky & Slochowsky, LLP, 208 A.D.3d 1381 (2022), which held in pertinent part: “Special damages ‘must be alleged with sufficient particularity to identify actual losses and be related causally to the alleged tortious acts’ [internal citations omitted]. Here, the plaintiff failed to demonstrate that any losses he allegedly suffered were causally related to an act or series of acts on the part of the defendants.” In other words, a plaintiff must be able to demonstrate that she actually suffered damages (lost money, for example) and that the reason for that loss is/are the action(s) of the defendant.
So, What’s the Point?
The purpose of prima facie tort is to provide an avenue for redress in situations where someone is motivated purely and solely by malice; the harm that they do to another should not go unpunished. The problem is that humans are complicated beings and rarely have only one motivation for doing something. That makes successful prima facie tort claims exceedingly rare. Only about 4% of such claims involve intentional torts; and prima facie tort is just a tiny subset of that. Still, when I need a little reassurance that the legal system does occasionally ensure that evil people will be punished for hurting others, the very existence of this cause of action gives me comfort.
January 28, 2026
By Laura Trachtman
As an attorney who practices quite a lot of employment law, I frequently deal with the legal concept of respondeat superior. What is it, and why is it important to an employment law practice?
What is Respondeat Superior?
Respondeat superior is a Latin phrase meaning roughly “let the master answer.” (We’ll scoot right by why we, as Americans, continue to use Latin (and French) in our legal system.) Under this legal theory, an employer is vicariously responsible for the tortious actions of its employees, as long as they act within the scope of their employment. In the famous case of Riviello v. Waldren, 47 N.Y.2d 297 (1979), the courts weighed in on whether an employer was responsible for his employee’s actions when that employee, while at work, injured a customer. The Court specifically focused on the meaning of the phrase “within the scope of his employment.”
The Court of Appeals first explained that the respondeat superior doctrine had initially been narrowly defined, which meant that, because the employer could exercise close control over his employees while the employees were engaged in serving their employer, the employer’s liability was limited. Over time, however, social policies helped expand the doctrine.
An Expanding Doctrine
The expansion of respondeat superior is what makes the doctrine important to an employment attorney, as it opens up a brand new set of defendants for an injured party. What fueled this expansion? The increasing frequency of employees injuring third parties is one reason; Another is the generally deeper pockets of the employer relative to the employee who caused the injury. Modern economic devices, such as cost accounting and insurance coverage, make the burden of a lawsuit and subsequent damages easier for the employer to bear, as opposed to the employee or the injured party.
When is the Doctrine Applicable?
Accordingly, the test for the doctrine of respondeat superior was whether the tortious act was done while the employee was executing the employer’s work. It didn’t matter how irregularly or with what disregard of the employer’s instructions.
Of course, because we are discussing the law, the application of this doctrine isn’t quite that simple: It is a fact-based inquiry, and thus usually reserved for the jury. That means that, while the question can be determined on a motion for summary judgment, it needn’t necessarily be so easily resolved.
The courts have set forth guidelines to help determine employer liability: the connection between the time, place and occasion of the act; the history of the relationship between the employer and employee as spelled out in actual practice, like day to day interactions; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the employer could reasonably have anticipated the specific act. A vital inquiry is whether the tortious act as performed by the employee was so removed from their duties as to be considered an abandonment of service to the employer. A negative answer severs the responsibility of the employer. But how is this determined?
This issue is highlighted in another Court of Appeals case, Rivera v. State, 34 N.Y.3d 383 (2019), which examined whether the State is responsible for the assault by corrections officers of an inmate. Corrections officers are indeed authorized to use physical force against inmates in limited circumstances. However, the facts therein – that it was a brutal and prolonged beating involving multiple corrections officers in a flagrant and unjustified use of force – informed the Court’s decision to sever liability. Specifically, the Court held that: “[h]ere, the gratuitous and utterly unauthorized use of force was so egregious as to constitute a significant departure from the normal methods of performance of the duties of a correction officer as a matter of law. This was a malicious attack completely divorced from the employer’s interests.” Id. at 391.
Both of the cases examined above involved physical injury. Yet this is certainly not the only injury for which an employer could be held responsible. A critical inquiry is whether the employer’s interests are involved in the employee’s commission, either negligently or intentionally, of the tort at issue. This issue should be examined at the beginning of one’s representation to ensure that the employer is indeed exposed to liability for the acts of his employee.
December 16, 2025
By Laura Trachtman
Of late, a number of my clients have faced an Order to Show Cause for a temporary restraining order and a preliminary injunction. Their first question usually is, “What does all of this mean?”
First, an OSC is just a fancy way of saying emergency motion. It’s the vehicle by which a movant (the person who makes the motion) gets their motion in front of the Judge. A regular motion is brought by Notice of Motion, which sets forth the grounds upon which the motion is based and gives the return date (the day when everyone usually goes in front of the Judge and argues the motion). In bringing an OSC, however, you have to demonstrate to the Judge that your request has some support at the very least.
Unlike a Notice of Motion, the OSC isn’t signed by the attorney for the moving party, but by a Judge. In other words, an OSC has to surmount an initial obstacle – convincing the Judge that your request has merit. It’s the same basic paperwork, affidavits speaking to the facts and memoranda of law speaking to the law, but the attorney for the movant has to convince the Judge to sign an Order ordering the defendant to show cause and explain why an(other) Order shouldn’t be issued prohibiting the defendant from doing such-and-such. If your papers aren’t procedurally sound, if you haven’t complied with all of the prerequisites before bringing the OSC, your OSC will be denied. This process is briefly addressed in CPLR § 2214(d), which states in pertinent part, “The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein.” (The last part indicates that the time and the manner are to be specified in the OSC.)
If you convince the Judge that your request has merit and you have satisfied the procedural prerequisites, the Judge will issue a TRO (as it’s usually abbreviated). This is an Order signed by a Judge, which temporarily restrains, or restricts, the defendant from engaging in certain activities. CPLR § 6313 makes provision for such an order, “If, on a motion for a preliminary injunction, the plaintiff shall show that immediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing can be had, a temporary restraining order may be granted without notice. Upon granting a temporary restraining order, the court shall set the hearing for the preliminary injunction at the earliest possible time.”
Here, the movant’s burden is clear: They have to demonstrate in the papers supporting their OSC that immediate and irreparable injury, loss or damages will result absent an Order forbidding the non-moving party from engaging in a specific activity. In other words, the purpose of the OSC is to maintain the status quo while a motion for a preliminary injunction is being argued (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C6313:l). The TRO is basically a “pause” button while the Judge reviews the papers supporting, and opposing, the preliminary injunction and issues a decision.
Next, let’s go over the preliminary injunction. First, it’s an injunction, meaning it enjoins, or forbids, one party from doing something. It can also force someone to continue doing something, which is a little confusing (as the word “enjoin” means to prohibit), but it makes sense that if the Courts can stop someone from doing something, the Courts should equally be able to get someone to keep doing something that the party would otherwise stop doing.
Second, the preliminary injunction is a request for pendente lite relief; in other words, only for the pendency of the case, as opposed to a permanent injunction, which is issued at the end of the case. This is memorialized in CPLR § 6301, “A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff.”
There’s a lot of case law on preliminary injunctions, but I’ll put my favorite right here: The Court of Appeals in Aetna Ins Co. v. Capasso, 75 N.Y.2d 860, 862 (1990), held that to be entitled to a preliminary injunction, “plaintiffs had to show a probability of success, danger of irreparable injury in the absence of an injunction, and a balance of the equities in their favor.” Additionally, the Second Department in Blueberries Gourmet, Inc. v. Aris Realty Corp., 255 A.D.2d 348, 349-50 (2d Dept.1998), held that “[t]o sustain this burden [of demonstrating a likelihood of success on the merits], the movant must demonstrate a clear right to relief which is “plain from the undisputed facts” (see, Family Affair Haircutters v. Detling, 110 A.D.2d 745, 488 N.Y.S.2d 204). Where the facts are in sharp dispute, a temporary injunction will not be granted (internal citations omitted).”
The TL;DR of the above is that the movant has to show that they’re likely going to win the entire case, that something really bad will happen to them if the Court doesn’t issue the preliminary injunction, and that all told, it’ll be worse for them than for the other side if the Judge doesn’t issue the preliminary injunction. Further, the moving party has to show that the facts are agreed to by everyone. This is a very heavy burden. Generally speaking, it’s a lot easier to poke holes in an application for a TRO and a preliminary injunction than to bring one successfully.
I’ve argued five applications for a preliminary injunction in the last year – two in the Appellate Division – Second Department, and three in the Supreme Court. Luckily, my clients have been pleased with the results of my efforts so far. While I’m definitely becoming more comfortable with opposing and submitting OSCs (practice makes perfect and all), and I do enjoy the thrill of having the twin challenges of a short turnaround and high stakes, I would be grateful if 2026 could feature more motions and fewer OSCs.
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.
