CPLR 3116(a).

The trial court erred in permitting defendants to use the transcripts of plaintiff's and his nonparty wife's depositions at trial, since the transcripts had never been served upon plaintiff and his wife.

Greenman v. 2451 Broadway Mkt., Inc., NY Slip Op 01962 (1st Dep't March 19, 2020)

Here is the decision.

Design defect and failure to warn claims.

The denial of summary judgment on the design defect claim was affirmed, as plaintiff's expert's averments that the ladder at issue was defective and unreasonably dangerous because its design included feet that were prone to wear and tear and to slip out, raised issues of fact as to whether the ladder was defectively designed and the proximate cause of plaintiff's injuries.  The defendant's mere compliance with minimum industry standards is not a shield to liability, but, at most, is some evidence to be considered.

The denial of summary judgment on the failure to warn claim was affirmed, since plaintiff's expert raised issues of fact as to whether the ladder's warnings failed to identify the foot slip-out danger or instruct the user of proper methods to mitigate the danger.

Alicea v. Gorilla Ladder Co., NY Slip Op 01960 (1st Dep't March 19, 2020)

Here is the decision.

CPLR 3025[b].

The Supreme Court did not abuse its discretion in denying leave to amend the first amended complaint, particularly where plaintiff acknowledges that it could have sought leave sooner, but strategically chose not to. The plaintiff's additional allegations supplement claims already deemed sufficiently pleaded, and those further allegations would prejudice the defendant at this late stage, when discovery has closed, trial is scheduled to commence, and the defendant's summary judgment motion is pending.

Atlas MF Mezzanine Borrower, LLC v. Macquarie Tex. Loan Holder LLC, NY Slip Op 01709 (1st Dep't March 12, 2020)

Here is the decision.

Res judicata.

Res judicata does not bar plaintiffs' current action seeking compensation for injuries and damages resulting from a mold condition in their apartment in a building that is owned and managed by defendants. The record shows that a stipulation discontinuing a prior lawsuit against one of defendants' board members for his alleged tortious acts was not intended to encompass plaintiffs' current claims.

Gaudio v. Grabler Bldg. Condominium, NY Slip Op 01700 (1st Dep't March 12, 2020)

Here is the decision.

Appellate practice.

In reviewing a determination made after a nonjury trial, the Appellate Division has power as broad as the trial court's, and it may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial judge had the advantage of seeing the witnesses.

Bar v. Mandler, NY Slip Op 01592 (2d Dep't March 11, 2020)

Here is the decision.

CPLR 3101.

While 3101(a) provides for full disclosure of "all matter material and necessary in the prosecution or defense of an action," the principle is limited by 3101(b) and (c), which make privileged matter and attorney work product absolutely immune from discovery.  In addition, pursuant to 3101(d)(2), material that is prepared in anticipation of litigation is subject to a conditional privilege and is subject to disclosure only on a party's showing a substantial need of the material and the inability to get the substantial equivalent of the material by any other means without undue hardship.

1415, LLC v. New York Mar. & Gen. Ins. Co., NY Slip Op 01589 (2d Dep't March 11, 2020)

Here is the decision.

An action marked "Disposed."

The motion court properly ordered the action to be marked "Disposed" since all four of the plaintiff's causes of action had been resolved at the time defendant made its motion to dismiss.  The plaintiff's argument that the second cause of action had not been withdrawn at the time of the defendant's motion is unavailing, since, in an earlier order, the motion court explicitly dismissed without prejudice that claim. Although that order was decided by a different justice, CPLR 2221(a) permits the reassignment of such motions.

Fiondella v. 345 W. 70th Tenants Corp., NY Slip Op 01699 (1st Dep't March 12, 2020)

Here is the decision.

Conditional orders of preclusion.

Where the plaintiff failed to comply with a conditional order of preclusion requiring her to produce authorizations relating to treatment for her preexisting conditions, the order became absolute. As the order precluded her from offering evidence as to damages at trial, plaintiff would be unable to prove her prima facie case, and the action was dismissed. The defendants were not required to show prejudice as a result of the plaintiff's noncompliance.

Diaz v. Maygina Realty LLC, NY Slip Op 01697 (1st Dep't March 12, 2020)

Here is the decision.

CPLR 3215(c).

Pursuant to the statute, "if [a] plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned...upon its own initiative or on motion." The language of the statute is not discretionary, and a claim for which a default judgment is not sought within the requisite one-year period will be deemed abandoned. Notwithstanding that, a claim will not be deemed abandoned if the party seeking a default judgment provides sufficient cause as to why the complaint should not be dismissed. Here, the plaintiff waited almost three years to seek a default judgment, and it failed to provide sufficient cause as to why the complaint should not be dismissed. As such, plaintiff's complaint is dismissed as abandoned.

Wells Fargo Bank, N.A. v. Martinez, NY Slip Op 01593 (1st Dep't March 12, 2020)

Here is the decision.

The admissibility of business records.

An employee may lay a business record foundation for documents without having personal knowledge of their contents.

Deutsche Bank Natl. Trust Co. v. Kirschenbaum, NY Slip Op 01573 (1st Dep't March 10, 2020)

Here is the decision.

Opposition papers.

A plaintiff abandons his claims by failing to oppose that part of the defendant's motion seeking dismissal of those claims.

Leveron v. Prana Growth Fund I, L.P., NY Slip Op 01568 (1st Dep't March 10, 2020)

Here is the decision.