Coop boards and fiduciary duties.

A claim for breach of fiduciary duty does not lie against individual board members in the absence of an allegation of individual wrongdoing by the members, separate and apart from their collective actions taken on behalf of the cooperative. A corporation owes no fiduciary duty to its shareholders.

Hersh v. One Fifth Ave. Apt. Corp., NY Slip Op 05522 (1st Dep't July 26, 2018)

Here is the decision.

Personal jurisdiction.

While the ultimate burden of proof rests with the party asserting jurisdiction, a plaintiff, in opposing a motion to dismiss pursuant to CPLR 3211(a)(8), is required to make only make a prima facie showing that the defendant is subject to personal jurisdiction. Where the plaintiff opposes the motion on the ground that discovery is necessary, the plaintiff need only demonstrate that there may be facts sufficient for the exercise of personal jurisdiction over the defendant. On such a showing, the court may, in the exercise of its discretion, postpone resolution of the jurisdictional question, pursuant to CPLR 3211[d].

Abad v. Lorenzo, NY Slip Op 05426 (2d Dep't July 25, 2018)

Here is the decision.

Punitive damages.

A separate cause of action for punitive damages is not legally cognizable in New York, and a claim based solely on punitive damages must be dismissed.

Jean v. Chinitz, NY Slip Op 05521 (1st Dep't July 26, 2018)

Here is the decision.

Liability under the Labor Law.

By its express terms, § 240(1) applies to "contractors and owners and their agents." A party is deemed to be an owner or general contractor's agent when it has supervisory control and authority over the work being done. For liability to attach, the defendant must have the authority to control the activity bringing about the injury so that it could have avoided or corrected the unsafe condition. The determinative factor is whether the defendant had the right to exercise control over the work, not whether it actually exercised that right.

Cabrera v. Arrow Steel Window Corp., NY Slip Op 05275 (2d Dep't July 18, 2018)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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.