Documentary evidence.

A factual affidavit is not documentary evidence within the meaning of CPLR 3211(a)(1).

Celentano v. Boo Realty, LLC, NY Slip Op 02882 (1st Dep't April 26, 2018)

Here is the decision.

Failure to vacate a default.

Having failed to vacate the default, the defendant is deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from those allegations.

Bank of N.Y. Mellon Trust Co. v. Loodus, NY Slip Op 02591 (2d Dep't April 18, 2018)

Here is the decision.

Parol evidence in a contracts action.

Parol evidence of the parties' contrary intent is irrelevant in the face of the unambiguous governing documents.

P360 Spaces LLC v. Orlando, NY Slip Op 02749 (1st Dep't April 24, 2018)

Here is the decision.

A motion to dismiss.

Pursuant to CPLR 3211(a)(4), the court may dismiss an action if there is another action pending, in any court, seeking the same relief.

Ember v. Denizard, NY Slip Op 02715 (1st Dep't April 19, 2018)

Here is the decision.

Labor Law § 240(1).

The statute protects workers from elevation-related hazards while they are involved in the erecting, demolishing, repairing, altering, painting, cleaning, or pointing of a building or structure, or acts ancillary to those activities. Where the worker is engaged in routine maintenance, the statute is inapplicable.

Garnett v. Wappingers Cent. Sch. Dist., NY Slip Op 02600 (2d Dep't April 18, 2018)

Here is the decision.

Workers' Compensation.

An employee who is entitled to receive workers' compensation benefits may not sue the general employer or special employer for injuries sustained in the course of employment, pursuant to Workers' Compensation Law §§ 11, 29[6]. A special employee is one who is transferred for a limited time, of whatever duration, to the service of another employer.  The determination as to whether there is a special employment relationship is generally an issue of fact requiring consideration of factors such as who controls and directs the manner of the employee's work; who is responsible for payment of wages and benefits; who furnishes equipment; who has the right to discharge the employee; and whether the work being performed was in furtherance of the special employer's or the general employer's business. General employment is presumed to continue, and the presumption can only be rebutted by a clear demonstration of surrender of control by the general employer and assumption of control by the special employer.

Dube v. County of Rockland, NY Slip Op 02597 (2d Dep't April 18, 2018)

Here is the decision.

Statute of frauds and guarantees.

New York's statute of frauds requires that an agreement constituting a special promise to answer for another's debt, default, or miscarriage be memorialized in a writing signed by the party to be charged, pursuant to General Obligations Law § 5-701[a][2]. Notwithstanding the statute, an oral promise to guarantee another's debt may be enforced if the plaintiff proves that the promise is supported by new consideration moving to the promisor and beneficial to the promisor, and that the parties' intention is that the promisor be a principal debtor primarily liable.

Reddy v. Mihos, NY Slip Op 02565 (1st Dep't April 17, 2018)

Here is the decision.

A negligent hiring claim.

When it is determined that the employee was acting within the scope of employment, a negligent hiring claim must be dismissed.

Kerzhner v G4S Govt. Solutions, Inc., NY Slip Op 02559 (1st Dep't April 12, 2018)

Here is the decision.

Binding stipulations.

Only attorneys who are authorized to enter into binding stipulations may appear at pretrial conferences, pursuant to 22 NYCRR 202.26[e] and 22 NYCRR 202.12[b].  Therefore, an attorney's presence at a pretrial conferences is an implied representation by the attorney's client to the other side that the attorney has authority to bind the client to a stipulation.  A stipulation made by the attorney may bind a client even where it exceeds the attorney's actual authority if the attorney had apparent authority to enter into the stipulation.

Chae Shin Oh v. Jeannot, NY Slip Op 02446 (2d Dep't April 11, 2018)

Here is the decision.

The continuous representation doctrine.

For the doctrine to apply, the representation must be specifically related to the subject matter underlying the malpractice claim, and there must be a mutual understanding of need for further services in connection with that same subject matter.  A vague ongoing representation is insufficient to invoke the doctrine.

Davis v. Cohen & Gresser, LLP, NY Slip Op 02542 (1st Dep't April 12, 2018)

Here is the decision.

Establishing proper service.

While an executed affidavit of service attesting to personal delivery upon a defendant is prima facie evidence of proper service, a sworn nonconclusory denial of service by a defendant is sufficient to dispute the veracity or content of the affidavit, requiring a traverse hearing.

Bank of Am., N.A. v Diaz, NY Slip Op 02421 (1st Dep't April 10, 2018)

Here is the decision.