Constructive notice of a dangerous condition.

A defendant has constructive notice of a hazardous condition on its property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and fix it.

Bennett v. Alleyne, NY Slip Op 05272 (2d Dep't July 18, 2018)

Here is the decision.

Appellate practice.

No appeal lies from an order or judgment entered upon the default of the appealing party, pursuant to CPLR 5511.

Alvarez v. Jawaid, NY Slip Op 05269 (2d Dep't July 18, 2018)

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Discernible hazards.

A property owner has a nondelegable duty to maintain its premises in a reasonably safe condition, taking into account the forseeability of injury to others. Even if a hazard is discernible, the owner may be liable.  A plaintiff's awareness of a dangerous condition does not negate a duty to warn of the hazard, but only goes to the issue of comparative negligence.

Farrugia v. 1440 Broadway Assoc., NY Slip Op 05222 (1st Dep't July 12 2018)

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Waiver of the issue of standing.

A plaintiff who fails to timely appear or answer waives the issue of standing, pursuant to CPLR 3211(e).

U.S. Bank N.A. v. Thompson, NY Slip Op 05403 (1st Dep't July 19, 2018)

Here is the decision.

Vacating a default.

Pursuant to CPLR 5015(a)(1), a defendant seeking vacatur on the ground of excusable default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action.

Allstate Ins. Co. v. North Shore Univ. Hosp., NY Slip Op 05268 (2d Dep't July 18, 2018)

Here is the decision.

Joint trials.

When actions involving a common question of law or fact are pending before a court, the court, on a motion, may order a joint trial of any or all the matters in issue, pursuant to CPLR 602[a]. The determination of the motion is addressed to the sound discretion of the court.  Denial of the motion may be warranted where: (1) there are no common questions of law or fact;  (2) the actions involve dissimilar issues or disparate legal theories; (3) a joint trial would substantially prejudice an opposing party; or (4) there is a risk of confusing the jury or rendering the litigation unwieldy.

Cromwell v. CRP 482 Riverdale Ave., LLC, NY Slip Op 05137 (2d Dep't July 11, 2018)

Here is the decision.

Premises liability.

In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of it. The defendant can also meet the burden by demonstrating, prima facie, that the plaintiff cannot identify the cause of the accident.

Burke v. Umbaca, NY Slip Op 05132 (2d Dep't July 11, 2018)

Here is the decision.

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.