Vacating a default.

Petitioner's bare and unsubstantiated assertion of law office failure by prior counsel is insufficient to establish a reasonable excuse for the default. Absent a reasonable excuse, the court does not have to determine whether there is merit to the petition.

Matter of Le Monda v. City of New York, NY Slip Op 01546 (1st Dep't March 8, 2018)

Here is the decision.

Summary judgment in a medical malpractice action.

In an action sounding in medical malpractice, a defendant moving for summary judgment must make a prima facie showing either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the patient's injuries. Once the defendant has made such a showing, the plaintiff, in opposition, must submit its own evidentiary facts or materials, but only as to those elements on which the defendant met the prima facie burden.

Burger v. Das, NY Slip Op 01449 (2d Dep't March 7, 2018)

Here is the decision;

Deposition transcripts.

Pursuant to CPLR 3116(a), a plaintiff's unsigned deposition transcript may be used as though fully signed, where defendant submitted proof that the certified transcript was provided to plaintiff's attorneys for execution and not returned.  An unsigned but certified transcript may be used as an admission, especially where there is no dispute as to the transcript's accuracy.

Luna v. CEC Entertainment, Inc., NY Slip Op 01429 (1st Dep't March 6, 2018)

Here is the decision.

Proceeding pro se.

Where a party unequivocally asserts the right to self-representation, the court must conduct a searching inquiry to ensure that the waiver of the right to counsel is knowing, intelligent, and voluntary. While there is no rigid formula to the court's inquiry, there must be a showing that the party was aware of the dangers and disadvantages of proceeding pro se. In conducting its inquiry, the court should ask questions about the party's  age, education, occupation,  and previous exposure to legal procedures.

Matter of Aleman v. Lansch, NY Slip Op -13-3 (2d Dep't February 28, 2018)

A 90-day demand.

When served with the demand, pursuant to CPLR 3216, a plaintiff must comply by filing a note of issue, or by moving, before the default date, to either vacate the demand or extend the 90-day period.

Austin v. Gould, NY Slip Op 01404 (1st Dep't March 1, 2018)

Here is the decision.

Trivial defects.

A property owner will not be held liable for trivial defects not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub a toe, or trip. In determining whether a defect is trivial, the court will consider the width, depth, elevation, irregularity, and appearance of the defect along with the time, place and circumstance of the accident.

A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that, under the circumstances, the defect is physically insignificant, and that the defect's characteristics or the surrounding circumstances do not increase the risks it poses. On a sufficient showing, the burden shifts to the plaintiff to establish an issue of fact.

Cortes v. Taravella Family Trust, NY Slip Op 01301 (2d Dep't February 28, 2018)

Here is the decision.

Libel actions.

A factual statement made to someone with a common interest in the subject matter is protected by a qualified privilege.  A conclusory allegation of malice on the speaker's part is insufficient to overcome the privilege.

Matter of Abbitt v. Carrube, NY Slip Op 01394 (1st Dep't March 1, 2018)

Here is the decision.

Binding contracts.

The question of whether a contract is binding does not depend on the parties' subjective intent. Instead, in determining whether the parties entered into a contractual agreement and on what terms, a court must look to the objective manifestations of the parties' intent as expressed in their words and deeds. Put simply, the manifestation of the parties' intention is controlling, not their actual or real intention.

Gator Hillside Vil., LLC v. Schuckman Realty, Inc., NY Slip Op 01178 (2d Dep't February 22, 2018)

Here is the decision.

A corporate officer's liability.

A corporate officer who participates in the commission of a tort may be held individually liable, regardless of whether the corporate veil is pierced.

L.I. City Ventures LLC v Sismanoglou, NY Slip Op 01259 (1st Dep't February 22, 2018)

Here is the decision.

Commencing a foreclosure action

RPAPL 1304(1) provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower."  Pursuant to 1304(2), the notice must be sent by registered or certified mail and by first-class mail to the borrower's last known address. Proper service of notice is a condition precedent to the commencement of the action, and the plaintiff has the burden of establishing satisfaction of this condition.

Bank of Am., N.A. v. Wheatley, NY Slip Op 01175 (2d Dep't February 21, 2018)

Here is the decision.

Standing.

The Appellate Division affirmed dismissal of the complaint alleging that defendant's delivery trucks were blocking designated bicycle lanes. Plaintiff lacked standing to bring the suit, as he failed to sufficiently demonstrate special injury beyond that sustained by the community at large.

Bell v. United Parcel Serv., Inc., NY Slip Op 01252 (1st Dep't February 22, 2018)

Here is the decision.