Procedure
September 1, 2026
By Laura Trachtman
I was listening to some Disney songs over the weekend, you know, like a normal 45 year old litigator does, and I caught “Poor, Unfortunate Souls” from the Little Mermaid. Every other time I’ve listened to this song, I’ve just enjoyed Ursula’s Lawful Evil tendencies, but this time, something caught my attention, and I wondered: “Is this a real contract?”
A contract needs six elements to be valid (an offer, acceptance, awareness, consideration, capacity, and legality), so let’s review seriatim. There’s an offer: Ursula’s terms are simple: “Now, here’s the deal: I will make you a potion that will turn you into a human for three days. Got that? Three days. Now listen, this is important: before the sun sets on the third day, you’ve got to get dear ol’ princey to fall in love with you, that is, he’s got to kiss you; not just any kiss, the kiss of True Love. If he does kiss you before the sun sets on the third day, you’ll remain human permanently! But, if he doesn’t, you turn back into a mermaid and… you belong to me!”
There’s acceptance; we’ve all seen the part where Ariel hides her face and signs the contract.
There’s awareness, which means mutual assent: Both parties understand the agreement and enter into it voluntarily, meaning there is no fraud, coercion, duress, or undue influence. I think this point deserves a little more analysis, in fairness to Ursula. There’s no fraud here, as Ursula clearly sets forth her conditions. There’s no coercion, as Ariel is in love with Prince Eric and desperately wants to become a human to win his heart so Ursula clearly isn’t making Ariel do anything she doesn’t want to do. And there’s no undue influence, as no one appears to like or trust Ursula, except for her eels, Flotsam and Jetsam. And while I have a disagreement with an expert on The Little Mermaid on whether Ariel signed under duress, I personally don’t think that this situation constitutes duress, as there’s no threat of physical harm, imprisonment, or financial ruin.
There’s consideration: both parties exchange something of value, as Ursula uses magic to transform Ariel into a human, and Ariel gives Ursula her voice.
Here we run into our first snag: we may not have capacity, depending upon the age of consent in the Kingdom under the Sea. Elsewhere in the movie, King Triton remonstrates with his daughter for her conduct and calls her out as being 16 years old. If the age of consent in that jurisdiction is 16, she’s able to legally enter into contracts, but if it’s 18 or older, then she’s unable to do so without the consent of her legal guardian, King Triton.
The final element is legality. Here again, there’s a snag: again, depending upon the jurisdiction, you can’t give yourself to another person to own legally. Unfortunately, there are two indications that selling oneself into slavery is legal in the Kingdom under the Sea: the plethora of Poor, Unfortunate Souls in the garden in Ursula’s cave, and the fact that King Triton allowed himself to become a slave to Ursula to save Ariel.
I think we can all recognize that Ursula engaged in all manner of improper conduct after the contract was signed transforming herself into an Ariel doppelganger and using Ariel’s voice to bewitch Prince Eric is clearly a violation of the covenant of good faith and fair dealing. However, at the point where Ariel signs the contract, assuming that capacity and legality don’t act as bars to the contract, we’re all good.
And that, Dear Reader, is why you should never enter into a contract with a Sea Witch. Up next: Was the Beast falsely imprisoning Belle? (kidding.)
August 25, 2026
By Laura Trachtman
At first blush, an action for an accounting and an action demanding inspection of a business entity’s books and records might seem like the same thing. After all, both involve basically reviewing information pertinent to the entity, right? Actually, the two causes of action are grounded in entirely different aspects of law. Let’s start off in alphabetical order:
A for Accounting!
So first: What is an accounting? It’s a report, formal or otherwise, which details all transactions, assets, income, expenses and distributions related to an estate, a trust, or a business. In other words, it’s a mechanism to ensure transparency and accountability when a person manages money or assets belonging to another. Usually this is demanded, informally at first, when partners/members/etc. think that an individual with access to money/resources is engaging in self-dealing or fiscal malfeasance.
Not everyone can demand an accounting. “Under New York law, an accounting is an equitable remedy (Barry v. Clermont York Assoc. LLC, 144 A.D.3d 607, 608, 42 N.Y.S.3d 123 [1st Dept. 2016]), “premised upon the existence of a fiduciary relationship” (Castellotti v. Free, 138 A.D.3d 198, 210, 27 N.Y.S.3d 507 [1st Dept. 2016] ).” Est. of Calderwood v. ACE Grp. Int’l LLC, 157 AD3d 190, 199 (1st Dept 2017). So, in other words, the person who demands the accounting must have a fiduciary relationship with the person of whom the accounting is demanded. However, once you’ve demanded an accounting, you should be able to get a fairly clear understanding of the finances of an entity, and whether there’s been some funny business going on. This isn’t restricted only to the banking records, but also credit card transactions.
Finally, wrongdoing must be established for a demand for an accounting to be granted but only in certain jurisdictions. For example, the First Department does not require wrongdoing to be established to grant an accounting, only that a fiduciary relationship be established. However, in an action for accounting, as in all equitable actions, one must demonstrate that there is no adequate relief available in law.
B for Books and Records!
What is an action for books and records? It’s a common law-cum-statutory right of inspection available to shareholders/partners of a business entity. The statutory part is codified in Business Corporations Law § 624, but the common-law right, which existed first in time and which was supplemented by the statute, is broader. Matter of Crane Co. v Anaconda Co., 39 NY2d 14, 19-20 (1976); Matter of Steinway, 159 NY 250, 263-265 (1899), quoted by Retirement Plan for Gen. Empls. of the City of N. Miami Beach v McGraw-Hill Cos., Inc., 120 AD3d 1052 (1st Dept 2014). (Sidenote: I’m unsure why the State Legislature would feel the need to pass legislation which was narrower than a well-established common law right, but this is why I do not participate in politics.) As set forth in Retirement Plan for Gen. Empls. of the City of N. Miami Beach v McGraw-Hill Cos., Inc., 120 AD3d 1052, supra, a qualified person can demand more than simply financial information: they can request minutes of the Board, records of shareholders and their contact information, and additional information related to the oversight and management of the Board, as well as the Board’s independence (Board members therein were alleged to be self-interested and thus conflicted).
Unlike in an accounting, a demand for books and records does not require wrongdoing to be first established; however, should a shareholder make such a demand for inspection, the shareholder may be required to make some demonstration. The First Department in Pomerance v. McGrath, 143 AD3d 443, 444 (1st Dept 2016) shed light on the limits of this action: “While inspection rights permit shareholders to examine records that are relevant and necessary for a valid purpose, they do not grant shareholders a right to be involved in day to day management. Whether a shareholder asserts statutory or common-law inspection rights, the shareholder may be required to demonstrate good faith and a valid purpose, and inspection may be limited to the scope of records relevant and necessary for such purpose [internal citations omitted].”
C for Conclusion!
Why are we even talking about these two actions? It’s important for anyone involved in a business entity to know what their rights are. When I first spoke with my brilliant partner Emily about an action for books and records last year, I’d never even heard of it, and wondered aloud how it was different from an accounting. And now, Dear Reader, we all know.
July 28, 2026
By Laura Trachtman
A situation where a client is litigating two separate matters can sometimes be confusing. When I was a prosecutor in the Bronx, defense counsel would usually ask that the multiple matters be scheduled to meet on the same day to avoid too many trips to the courthouse, and the DA’s office never objected. But that was criminal land. What do you do when you have a client litigating two separate matters in civil terms?
Of course, it depends; in today’s blog, we’re going to talk about what happens when the two matters share common facts or law. In such a situation, you make one of two motions: a motion to consolidate or a motion for a joint trial. Both motions are governed by the same statute, that is, CPLR § 602(a).
What’s the difference?
For all intents and purposes, there is no real difference. As noted by the Second Department in Cohalan v. Johnson Elec. Constr. Corp., 104 A.D.2d 920 [2d Dept 1984], there would be “no significant or practical distinction between the courtroom procedures that [would] occur if the actions [were] consolidated rather than jointly tried.” In Cohalan, the court recognized that proposed consolidation of two trials would have no negative impact on the judgment that could not be reconciled by the diligence of the court.
Where does one bring a motion to consolidate or a motion for a joint trial?
Generally, a motion for consolidation under the statute “is addressed to the sound discretion of the court, and absent a showing of substantial prejudice by the party opposing the motion, consolidation is proper where there are common questions of law and fact.” RCN Constr. Corp. v. Fleet Bank, N.A., 34 AD3d 776, 777 [2d Dept 2006]. Nonetheless, consolidation is not appropriate where the movant “fail[s] to specify the commonality in issues of law.” Id. at 777. A motion for consolidation should also be denied “where the actions involve dissimilar issues or disparate legal theories or where a joint trial would substantially prejudice an opposing party or pose a risk of rendering the litigation unwieldy.” Cromwell v. CRP 482 Riverdale Ave., LLC, 163 AD3d 626, 627-628 [2d Dept 2018] [internal citations omitted].
So which Do I Pick?
If you are worried about jury confusion, a joint trial is your best bet. Why? Because a joint trial results in the creation of two separate judicial actions in which the verdict and judgment are rendered independently from one another, although they are both decided by the same jury. In Mas-Edwards v. Ultimate Services, Inc., the Second Department noted that joint trials are the appropriate method of combination when “the actions involve different plaintiffs.” Mas-Edwards v. Ultimate Services, Inc., 45 A.D.3d 540 [2d Dept 2007]. While the courts a hundred years ago noted that the parties being a plaintiff in one matter and a defendant in another matter was no obstacle to the matters being consolidated, see Goldey v. Bierman, 201 A.D. 527 [App. Div. 1922], courts nowadays prefer to merge the matters into a joint trial, instead of a consolidated matter, so as to avoid jury confusion.
By contrast, the act of consolidation creates a fused judicial action where a singular judgment is rendered. For example, in Cieza v. 20th Ave. Realty, Inc., 109 A.D.3d 506 [2d Dept 2013], Cieza was first injured in a work-related accident, but his injuries were further exacerbated by an auto accident mere months later. The Second Department granted Plaintiff Cieza’s motion for consolidation, noting that “[i]n view of Cieza’s allegations that certain injuries that he sustained in the automobile accident were exacerbated by the work-related accident, in the interest of justice and judicial economy, and to avoid inconsistent verdicts, the two actions should be tried jointly.”Cieza v. 20th Ave. Realty, Inc., 109 A.D.3d 506, 506–07, supra.
Conclusion
When two matters share common laws or facts, a moving party would be able to either motion for a joint trial or consolidation. Both methods grant benefits for the judicial system as well as the individual parties by, inter alia, conserving judicial resources and avoiding inconsistent verdicts. However, the circumstances in which each situation will be granted will be dependent on the facts of the cases, needs of each party, and, ultimately, the discretion of the court.
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.
