Contracts and torts.

A simple breach of contract is not to be considered a tort absent the violation of a legal duty that is independent of the contract itself.

Rosner v. Bankers Std. Ins. Co., NY Slip Op 04015 (2d Dep't May 22, 2019)

Here is the decision.

A restaurant's liability for valet parking.

The restaurant may be liable for the negligence of its attendants who are alleged to have caused an accident to a third party, even if the parking service is an independent contractor. The restaurant's duty of care arises when it has the ability and opportunity to control the conduct of its contractors, and an awareness of the need to do so.

Evans v. Norecaj, NY Slip Op 04029 (1st Dep't May 23, 2019)

Here is the decision.

CPLR 3211(a)(5).

A party may move to dismiss a cause of action based on the doctrine of res judicata, or claim preclusion, under which a valid final judgment bars future actions between the same parties on the same cause of action.

23 E. 39th St. Dev., LLC v 23 E. 39th St. Mgt. Corp., NY Slip Op 03748 (2d Dep't May 15, 2019)

Here is the decision.

Memorial Day.

Memorial Weekend. 2019.

Memorial Weekend. 1970.

Memorial Weekend. 1970.

CPLR 5511.

No appeal lies from an order entered upon the default of the appealing party.

HSBC Bank USA, Natl. Assn. v. Guaman, NY Slip Op 03772 (2d Dep't May 15, 2019)

Here is the decision.

CPLR 3025(b).

Although leave to amend a pleading will generally be granted in the absence of prejudice or surprise to the opposing party, the motion will be denied where the proposed amendment is palpably insufficient or patently devoid of merit.

Greene v. Esplanade Venture Partnership, NY Slip Op 03771 (2d Dep't May 15, 2019)

Here is the decision.

Service of process.

The process server's affidavit of service gives rise to a presumption of proper service, and the plaintiff's conclusory and unsupported statements in his affidavit are insufficient to rebut the presumption.

Green Tree Servicing, LLC v. Ferando, NY Slip Op 03770 (2d Dep't May 15, 2019)

Here is the decision.

Contract construction.

Where the parties' agreements are complete, clear and unambiguous on their face, they must be enforced according to the plain meaning of their terms.

Teledata Tech. Solutions, Inc. v. Sandton Fund Assignments, LLC, NY Slip Op 03889 (1st Dep't May 16, 2019)

Here is the decision.