Aiding and abetting breach of a duty of fidelity.

There may be liability for aiding and abetting only when the defendant provides substantial assistance to the primary violator.  There is substantial assistance when a defendant affirmatively assists, helps to conceal, or fails to act when required to do so, thereby enabling the breach to occur. The claim will be dismissed if the plaintiff alleges that the defendant did nothing more than offer competitive compensation.  Where the alleged conduct is neither wrongful nor improper, the cause of action does not lie.  

BGC Partners, Inc. v. Avison Young (Canada) Inc., NY Slip Op 02290 (1st Dep't April 3, 2018)

Here is the decision.

Labor Law § 241(6).

The statute imposes on owners and contractors a nondelegable duty of reasonable care to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which there is construction, excavation or demolition work.  Courts have generally held that the statutory scope is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work expansively, as "[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures."

De Jesus v. Metro-N. Commuter R.R., NY Slip Op 02150 (2d Dep't March 28, 2018)

Here is the decision.

Clear and convincing evidence.

Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened.  As evidence, it is neither equivocal nor open to opposing presumptions.

Matter of Seon v. New York State Dept. of Motor Vehs., NY Slip Op 02240 (March 29, 2018)

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Custody of the child.

The essential consideration in determining custody is the best interests of the child, and neither parent has a prima facie right to custody. In determining a custody arrangement, the court must consider factors such as the quality of the home environment, the parental guidance the custodial parent provides, each parent's ability to provide for the child's emotional and intellectual development, each parent's financial status and ability to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent. The court must consider the totality of the circumstances, and no one factor is determinative.

Matter of Bongocan v. Javier L., NY Slip Op 02148 (2d Dep't March 28, 2018)

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Proper service.

A process server's affidavit constitutes prima facie evidence of proper service. To vacate a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the affidavit. A sworn denial of receipt of service containing detailed and specific contradiction of the allegations in the process server's affidavit may be sufficient to defeat the presumption of proper service.

HSBC Bank USA v. Whitter, NY Slip Op 02146 (2d Dep't March 28, 2018)

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Statute of limitations.

The statute of limitations is not tolled during the period between a defendant's demand for a hearing pursuant to General Municipal Law § 50-h and the hearing.

Mourato v. Suffolk County Water Auth., NY Slip Op 01912 (2d Dep't March 21, 2018)

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Defamation actions and common-law malice.

A plaintiff cannot raise an issue of fact as to common-law malice if the defendant's statement was made in his own self-interest, and, thus, protected by a qualified privilege. The fact that the defendant may have harbored ill will toward the plaintiff is immaterial.

Glazier v. Harris, NY Slip Op 02025 (1st Dep't March 22, 2018)

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Motions to reargue.

The motion will be denied unless there has been a change in the controlling law, or there is new evidence that would warrant a different result. Denial of the motion is not appealable.

Koplowitz v. King, NY Slip Op 0202 (1st Dep't March 22, 2018

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Vacating, modifying, and confirming arbitration awards.

Pursuant to CPLR 7510, the court must confirm the award unless it is vacated or modified on a ground specified in CPLR 7511.

Matter of Granet & Assoc., Inc. v. Thom Filicia, Inc., NY Slip Op 02017 (1st Dep't March 22, 2018)

Here is the decision.

Vacating a default in opposing a motion.

In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion.  The motion to vacate must be made within one year after the movant has been served a copy of the judgment or order with written notice of entry.

Chase Home Fin., LLC v. Weinfeld, NY Slip Op 01899 (2d Dep't March 21, 2018)

Here is the decision.

Filing an RJI in a mortgage foreclosure action.

While 22 NYCRR 202.12-a(b)(1) states that at the time that proof of service of a summons and complaint is filed with the clerk, a plaintiff in a mortgage foreclosure action shall file a specialized RJI applicable to the action, it does not provide that the failure to do so will result in dismissal of the action.

BAC Home Loans Servicing, L.P. v. Jackson, NY Slip Op 01896 (2d Dep't March 21, 2018)

Here is the decision.