Dismissal for failure to comply with court orders.

The Appellate Division determined that the IAS court did not improvidently exercise  its discretion by dismissing this action after the plaintiff failed to comply with two so-ordered stipulations and a conditional order that gave him a final chance to comply. Plaintiff was warned that, if he did not comply strictly and completely, defendant could move to dismiss. A pro se plaintiff cannot ignore court orders.

Wyatt v. Sutton, NY Slip Op 03734 (1st Dep't July 2, 2020)

Here is the decision.

Negligent hiring and negligent entrustment.

The plaintiff wa injured when the driver-defendant struck her with his livery cab. The corporate defendant's motion to dismiss the negligentl entrustment and negligent hiring claims was denied. The Appellate Division reversed.

A motor vehicle's owner may be liable for negligent entrustment if it was negligent in entrusting it to a person it knew, or in the exercise of ordinary care should have known, was not competent to operate it. Here, the plaintiff alleged that the driver-defendant owned the car, and she did not allege, even in a conclusory fashion, that he was not competent to drive, or that the corporate defendant knew or should have known of any incompetence. The plaintiff's bare pleading of the corporate defendant's control  and the failure to allege its knowledge of any incompetence require dismissal.

The claim alleging negligent hiring, training, and retention must be dismissed because the complaint fails to allege that the driver-defendant had a propensity to drive negligently, and that the corporate defendant, when it retained him as a driver, knew, or should have known, of any such propensity.

While the plaintiff argues that dismissal is premature, in her opposition to the motion to dismiss she did not make any additional submissions to cure the pleading deficiencies or to establish that additional discovery is necessary. The corporate defendant responded to her outstanding discovery demands concerning the factual bases for her negligence claims while the motion was pending, and the plaintiff did not object to the adequacy of those responses.

Kornfeld v. Zheng, NY Slip Op 03732 (1st Dep't July 2, 2020)

Here is the decision.

A forum selection clause.

As a matter of law, the forum selection clause of the parties' Repurchase Agreement does not apply to their Separation Agreement. The agreements do not constitute a single, integrated agreement, since the two agreements were not executed for the same purpose and do not concern the same subject matter or arise from the same transaction. While the parties executed both agreements, and the agreements refer to each other, they are not interdependent. The Repurchase Agreement memorializes a one-time repurchase transaction, while the Separation Agreement memorializes a discrete, ongoing, and conditional transaction with a different purpose. Specifically, in the Separation Agreement plaintiff acknowledges his obligation to comply with certain specified protective covenants, and defendant agreed to pay him a bonus if he did so.

Cernich v. Athene Holding Ltd., NY Slip Op 03724 (1st Dep't July 2, 2020)

Here is the decision.

A motion for a judgment of foreclosure and sale.

The attachment of the note to the verified complaint is sufficient to establish that the lender had physical possession of the note prior to commencement of the action.

Ocwen Loan Servicing LLC v. Siame, NY Slip Op 03719 (1st Dep't July 2, 2020)

Here is the decision.

CPLR 4518.

Dental records created in the regular course of business are admissible as business records to the extent they are germane to the diagnosis and treatment of the patient.

Viera v. Khasden, NY Slip Op 03717 (1st Dep't July 2, 2020)

Here is the decision.

Appellate practice.

The Appellate Division declines to consider arguments concerning the Labor Law 240(1)  claim, as the plaintiff abandoned it by failing to oppose that aspect of the defendants' motion for summary judgment.

Sancino v. Metropolitan Transp. Auth., NY Slip Op 03615 (1st Dep't June 25, 2020)

Here is the decision.

An insufficient petition for leave to file a late notice of claim.

The petitioner failed to show that HHC had actual notice of the claim within 90 days of its accrual, or within a reasonable time thereafter.  HHC's records of the petitioner's treatment, on their face, do not show any negligence, malpractice or injury to the petitioner, and the petitioner does not submit a physician's affirmation to make such a showing. HHC's mere possession of medical records, in and of itself, does not establish a lack of prejudice if the petition were granted. Because the petitioner offered no other basis for the lack of prejudice to HHC, the burden never shifted to HHC to show prejudice from the delay. Neither does the petitioner provide any specific information or medical evidence to support a claim that the delay was reasonable.

Matter of Atkinson v. New York City Health & Hosps. Corp., NY Slip Op 03609 (1st Dep't June 25, 2020)

Here is the decision.

Discovery of tax returns.

While compelling disclosure of tax returns is generally disfavored, the motion may be granted where, as here, the defendant demonstrates both that the specific information ordered disclosed is necessary to defend the action, and unavailable from other sources. Prior to granting the motion, the court inspected the tax returns in camera and deemed them relevant. Further, the redactions of those filings directed by the court's order ensures that discovery is narrowly tailored to the issues in controversy. Finally, the court's order does not constitute inappropriate judicial pruning, since the defendant's demand is not overbroad or burdensome, and it does not seek irrelevant material or conclusions. To the extent that plaintiffs are concerned about the use of the returns for purposes unrelated to the action, they may seek an appropriate protective order.

Currid v. Valea, NY Slip Op 03590 (1st Dep't June 25, 2020)

Here is the decision.