An emergency doctrine jury instruction.

If, under some reasonable view of the evidence, an actor was confronted by a sudden and unforeseen occurrence not of the actor's own making, then the reasonableness of the conduct in the face of the emergency is for the jury, which should be appropriately instructed.

Figgiani v. Crociata, NY Slip Op 05645 (2d Dep't July 17, 2019)

Here is the decision.

Fraud and contracts.

The essential elements of a cause of action for fraud are representation of a material existing fact, falsity, scienter, deception, and injury. Mere unfulfilled statements as to what will be done in the future are not actionable as fraud, and the injured party's remedy is to sue for breach of contract. However, where it is alleged that the defendant made misrepresentations of present facts that were collateral to the contract and served as an inducement to enter into the contract, a cause of action alleging fraudulent inducement is not duplicative of a breach of contract claim.

Did-it.com, LLC v. Halo Group, Inc., NY Slip Op 05644 (2d Dep't July 17, 2019)

Here is the decision.

Suing the Port Authority.

A notice of claim must be served on the agency 60 days prior to commencing the action.  The notice must be a sworn writing setting forth the nature of the claim and the resulting damages or injuries.

Conn v. Tutor Perini Corp., NY Slip Op 05643 (2d Dep't July 17, 2019)

Here is the decision.

Vehicle and Traffic Law § 1128[a].

A driver has a duty not to enter a lane of moving traffic until it is safe to do so, and the failure to heed this duty constitutes negligence per se.

Castro v. Hatim, NY Slip Op 05639 (1st Dep't July 16, 2019)

Here is the decision.

CPLR 213[4].

An action to foreclose a mortgage is subject to a six-year statute of limitations. Where the mortgage is payable in installments, a separate cause of action accrues for each unpaid installment, and the limitations period begins on the due-date of each installment.  If a mortgage debt is accelerated, the entire amount is due and the limitations period begins on the entire debt. A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act during the six-year limitations period subsequent to the commencement of the prior foreclosure action.

Wilmington Trust, N.A. v. Dawson, NY Slip Op 05583 (2d Dep't July 10, 2019)

Here is the decision.

Judiciary Law § 470.

A non-resident attorney's failure to comply with the statutory requirement of maintaining a physical office in New York State at the time a complaint is filed does not render the filing a nullity, and dismissal of the action is not required. The party may cure the statutory violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel.

Marina Dist. Dev. Co., LLC v. Toledano, NY Slip Op 05480 (2d Dep't July 9, 2019)

Here is the decision.

CPLR 2005.

While the statute allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect is not accepted as a reasonable excuse.  A claim of law office failure must be supported by detailed allegations of fact explaining the failure," and vague, conclusory, and unsubstantiated excuses are unacceptable.

Wright v. Brooklyn Renaissance Funding Co., LLC, NY Slip Op 05584 (2d Dep't July 10, 2019)

Here is the decision.

CPLR 5015[a][1].

A party seeking to vacate a judgment based on excusable default must demonstrate both a reasonable excuse for the default and a meritorious defense. The preference for deciding cases on the merits does not justify vacating the default judgment where the moving party fails to satisfy the two-prong test.

Leader v. Parkside Group, NY Slip Op 05467 (1st Dep't July 9, 2019)

Here is the decision.

CPLR 214(4).

The statute of limitations for tortious interference with contract and with prospective business relations is three years from the date when the plaintiff first sustains damages. Here, the causes of action accrued on the date when the complaint alleges that plaintiff was terminated from his engagement with a nonparty.

Bandler v. DeYonker, NY Slip Op 05633 (1st Dep't July 11, 2019)

Here is the decision.

Summary judgment and discovery.

Plaintiff's argument that summary judgment should be denied because of a need for further discovery is unavailing since plaintiff only makes conclusory claims that unspecified evidence may be uncovered. While defendants moved for summary judgment just after the issue had been joined, depositions had been taken of all witnesses to the allegedly defamatory statements.

Thome v. Alexander and Louisa Calder Found., NY Slip Op 05625 (1st Dep't July 11, 2019)

Here is the decision.

An insufficient opposition to summary judgment.

In this personal injury action, the property owner-defendants' affidavits were insufficient to show, prima facie, that they did not owe a duty of care to the plaintiff.  The affidavits were conclusory, did not identify the source of their conclusions regarding the corporate relationships and responsibilities, did not refer to or include any supporting documentation or files, did not state that they were based upon personal knowledge, and failed to supply authenticated copies of the relevant leases or contracts.

Andriienko v. Compass Group USA, Inc., NY Slip Op 05506 (2d Dep't July 10, 2019)

Here is the decision.