Attorney depositions.

The First Department has adopted the Second Department's rule that a party seeking to depose opposing counsel must demonstrate a good-faith basis, in addition to showing that the information sought is material, necessary, and unavailable from another source. The demonstration of good faith is intended to rule out the possibility that the deposition is sought as a tactic intended solely to disqualify counsel, or for some other illegitimate purpose.

Liberty Petroleum Realty, LLC v. Gulf Oil, L.P., NY Slip Op 05624 (1st Dep't 2018)

Here is the decision.

Summary judgment on a landlord's cross-claim for contractual indemnification.

Summary relief is appropriate where, as here, the lease is unambiguous and clearly sets forth the parties' intention that the tenant indemnify the landlord for the injuries sustained.

Hong-Bao Ren v. Gioia St. Marks, LLC, NY Slip Op 05520 (1st Dep't July 26, 2018)

Here is the decision.

A motion to withdraw as counsel.

An attorney may be permitted to withdraw where the client refuses to pay reasonable legal fees, pursuant to Rules of Professional Conduct [22 NYCRR 1200.0] 1.16[c][5].  Additionally, an attorney may withdraw if the client fails to cooperate in the representation, or otherwise makes it unreasonably difficult for the lawyer to carry out representation effectively, pursuant to 1.16[c][7].

Applebaum v. Einstein, NY Slip Op 05437 (2d Dep't July 25, 2018)

Here is the decision.

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.