Summary judgment in a slip-and-fall action.

The Appellate Division reversed the motion court's determination that defendant was entitled to summary judgment dismissing the complaint on the ground that he is an out-of-possession landlord. In addition, it was permissible for plaintiff to plead defendant's violation of  Administrative Code of City of New York § 7-210 in opposition to defendant's motion, as plaintiff did not raise a new theory of liability or prejudice.

Herrera v. Vargas, NY Slip Op 03082 (1st Dep't May 28, 2020)

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CPLR 3212(f).

The motion court providently rejected defendants' argument in opposition to plaintiff's motion for summary judgment. Although defendants purport to require discovery from a third party, that entity is defendants' own agent, and defendants neither explained why they were unable to obtain the information sooner nor outlined any efforts made to obtain it.

Bethpage Fed. Credit Union v. Bouzaglou, NY Slip Op 03081 (1st Dep't May 28, 2020)

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Affidavits.

An affidavit based upon documentary evidence is sufficient to comply with the requirement of personal knowledge.

Bethpage Fed. Credit Union v. Bouzaglou, NY Slip Op 03081 (1st Dep't May 28, 2020)

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CPLR 1018.

In this action where plaintiff seeks to recover the unpaid balances of eight loans, the motion court properly amended the caption to reflect plaintiff's successorship by merger to the entity that issued the loans.

Bethpage Fed. Credit Union v. Bouzaglou, NY Slip Op 03081 (1st Dep't May 28, 2020)

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CPLR 306-b.

While plaintiff delayed in seeking an extension of his time to re-serve the complaint, the motion court appropriately exercised its discretion to extend plaintiff's time in the interest of justice . Plaintiff's legal malpractice claim, which would otherwise be time-barred, is potentially meritorious, and defendants have not established that they would suffer substantial prejudice from the extension, where they had actual notice of this action and the allegations against them from early on.

Fernandez v. McCarthy, NY Slip Op -3-79 (1st Dep't May 28, 2020)

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A motion for a preliminary injunction.

Both CPLR 6301 and 6312(a) require a link between a cause of action and the preliminary injunction. In the absence of such a link, the motion will be deined.

Davis v. Influx Capital Group, LLC, NY Slip Op 03077 (1st Dep't May 28, 2020)

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The admissibility of hearsay.

Hearsay is admissible in administrative proceedings, and it may be the basis for an administrative determination. If the hearsay is sufficiently relevant and probative, it, standing alone, constitutes substantial evidence.

Matter of Harge v. City of New York, NY Slip Op 03075 (1st Dep't May 28, 2020)

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A time-barred fiduciary duty claim.

The claim is  untimely under the governing three-year limitations period. The essence of plaintiffs' allegations is not that the defendant was an active participant in an alleged fraudulent scheme, but that he endorsed it rather than opposed it. Any fraud allegations are, at most, incidental to the fiduciary duty claim. The fiduciary tolling doctrine is inapplicable here, as plaintiffs seek money damages, rather than an accounting or equitable relief.

Habberstad v. Revere Sec. LLC, NY Slip Op 03071 (1st Dep't May 28, 2020)

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CPLR 213(4).

The six-year limitations period applicable to a mortgage foreclosure action begins to run against the entire outstanding principal as of the date of the acceleration of the loan.

U.S. Bank N.A. v. Garcia, NY Slip Op 02988 (1st Dep't May 21, 2020)

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Non-signatories to a forum selection clause.

The provision may be binding on a non-signatory where it and a contracting party have such a close relationship that it is foreseeable that the forum selection clause will be enforced against the non-signatory. The rationale for binding non-signatories is that forum selection clauses promote stable and dependable trade relations, and that it would be contrary to public policy not to enforce a forum selection clause against non-signatory entities through which a party acts.

Highland Crusader Offshore Partners, L.P. v. Targeted Delivery Tech. Holdings, Ltd., NY Slip Op 02991 (1st Dep't May 21, 2020)

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Spoliation sanctions.

Sanctions are available whether the evidence was destroyed intentionally, willfully, or negligently. In seeking sanctions, the movant must show that the party with control over the evidence had an obligation to preserve it; that the evidence was destroyed with a culpable state of mind; and that the evidence was relevant to the party's case such that the trier of fact could find that the evidence would support the movant's claim or defense. If the destruction of the evidence was intentional or willful, relevance is presumed. If the destruction was negligent, relevance must be established.

China Dev. Indus. Bank v. Morgan Stanley & Co. Inc., NY Slip Op 02987 (1st Dep't May 21, 2020)

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