Leave to amend a pleading.

In the absence of prejudice or surprise to the opposing party, leave will be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit, pursuant to CPLR 3025[b]. Lateness alone is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine.

Moran Enters. v. Hurst, NY Slip Op 02321 (2d Dep't April 4, 2018)

Here is the decision.

A false arrest and malicious prosecution claim

Dismissal was affirmed, as  defendants submitted competent proof that, during the execution of the search warrant, the plaintiff was in constructive possession of drugs and paraphernalia in plain view in the living room of the apartment where plaintiff was arrested, and that the police had probable cause to make the arrest.

Anderson v. City of New York, NY Slip Op 02396 (1st Dep't April 5, 2018

Here is the decision.

Labor Law § 240(1).

Comparative negligence is not a defense to a Labor Law § 240(1) claim.

Harrigan v. G-Z/10UNP Realty, LLC, NY Slip Op 02393 (1st Dep't April 5, 2018)

Here is the decision.

A legal malpractice claim.

Despite settlement of the underlying action, the claim is viable  if the plaintiff alleges that settlement of the action was effectively compelled by the mistakes of counsel.

Gad v. Sherman, NY Slip Op 02316 (2d Dep't April 4, 2018)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.