CPLR 3215(c), defaults, and dismissals.

CPLR 3215(c) states that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." It is not necessary for the plaintiff to actually obtain a default judgment within one year in order to avoid dismissal under the statute. If the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, the statute is not a basis for dismissal.

Bank of Am., N.A. v. Lucido, NY Slip Op 05130 (2d Dep't July 11, 2018)

Here is the decision.

A motion for leave to renew.

The motion must be based on new facts not offered on the earlier motion that would change the prior determination, and must set forth a reasonable justification for the failure to present the facts on the prior motion, pursuant to CPLR 2221[e][2], [3].

B & R Mech., Inc. v. Oak Ridge Hollow, LLC, NY Slip Op 05129 (2d Dep't July 11, 2018)

Here is the decision.

Liability for an independent contractor's negligence.

A principal is not liable for the acts of an independent contractor because, unlike the master-servant relationship, principals cannot control the manner in which independent contractors perform their work.

Sampedro v. Ellwood Realty, LLC, NY Slip Op 05120 (1st Dep't July 10, 2018)

Here is the decision.

A directed verdict in a medical malpractice case.

The court granted defendant-doctor's motion for a directed verdict, and dismissed the complaint, in this action where plaintiff's expert did not specifically opine as to whether defendant departed from a specific standard of accepted medical practice. The conduct at issue, which involved the implantation of a technologically challenging device, is not within the knowledge of a lay jury. Neither, in the absence of expert testimony, could the jury discern whether this was a known risk or negligence.

Tropeano v Sandhu, NY Slip Op 04967 (1st Dep't Jun 5, 2018)

Here is the decision.

An improper fee-sharing agreement.

Judiciary Law § 491[1] prohibits any person, partnership, or corporation from sharing an attorney's fee in consideration of having placed in the attorney's hands a claim or demand of any kind. Pursuant to § 491[2], a violation is punishable as a misdemeanor.  Here, under the purported fee-sharing agreement, the plaintiffs would provide the defendant attorneys with proprietary information regarding potential clients, investigate claims, interview potential plaintiffs, and otherwise assist with litigation. In exchange, the defendant attorneys would pay the plaintiffs 20% of their fee for each case. This agreement is illegal and unenforceable. The plaintiffs are not entitled to equitable relief, since the contract was criminal in nature and not merely prohibited by statute.

Ballan v Sirota, NY Slip Op 05014 (2d Dep't July 5, 2018)

Here is the decision.

An out-of-possession landlord's liability.

Snow or ice is not a significant structural or design defect for which an out-of-possession landlord may be held liable.

Fuentes-Gil v, Zear LLC, NY Slip Op 04964 (1st Dep't July 5, 2018)

Here is the decision. 

A dismissed unjust enrichment claim.

A valid and enforceable contract governing the subject matter at issue precludes recovery in quasi-contract for events arising out of that subject matter.

Lantau Holdings Ltd. v. General Pac. Group Ltd., NY Slip Op 04952 (1st Dep't July 3, 2018)

Here is the decision. 

Limitations period for misappropriation of trade secrets, tortious interference, and unfair competition.

These causes of action allege injuries to property, and, pursuant to CPLR 214[4], they are governed by a three-year statute of limitations.

CDx Labs., Inc. v. Zila, Inc., NY Slip Op 04692 (2d Dep't June 27, 2018)

Here is the decision.

Construction subcontracts.

Under New York law, clauses in a construction subcontract, incorporating prime contract clauses by reference, bind the subcontractor only as to the prime contract provisions relating to the scope, quality, character, and manner of the work to be performed by the subcontractor.

Naupari v. Murray, NY Slip Op 04945 (1st Dep't July 3, 2018)

Here is the decision.

Crossing guards and the City's liability.

Dismissal was granted as to the City in this action where the infant plaintiffs, on their way to school, were walking within the crosswalk when one of them was struck by a school bus owned by defendant-bus company and operated by defendant-bus driver. The City had assigned a crossing guard to assist children at the intersection, but the guard called out sick that morning.

In order to establish that the City voluntarily assumed a duty, a plaintiff must show: (1) an assumption by the City's agents, through promises or action, of an affirmative duty to act on behalf of the plaintiff; (2) knowledge on the part of the City's agents that inaction could lead to harm; (3) some form of direct contact between the City's agents and the plaintiff; and (4) the plaintiffs justifiable reliance.  Here, as a matter of law, the City had assumed no special duty as to the plaintiffs. There was no direct contact between the City's agents and the plaintiffs. The fact that the guard, when on duty, greeted the plaintiffs and they relied on the guard's instructions does not create a special duty.

Ivan D. v. Little Richie Bus Serv. Inc., NY Slip Op 04823 (1st Dep't June 28, 2018)

Here is the decision.