A claim of prima facie tort.

The claim will be dismissed for failure to state a claim,  pursuant to CPLR 3211(a)(7),  where the plaintiff fails to allege special damages.

Benjamin v. Assad, NY Slip Op 04449 (2d Dep't August 12, 2020)

Here is the decision.

A motion for leave to renew.

Pursuant to CPLR 2221[e][2], the motion "shall be based upon new facts not offered on the prior motion that would change the prior determination." Pursuant to 2221[e][3], the motion "shall contain reasonable justification for the failure to present such facts on the prior motion." Renewal is not a second chance that is freely given to a party who have not exercised due diligence in making its first factual presentation.

Bellevue v. Gustav, NY Slip Op 04448 (2d Dep't August 12, 2020)

Here is the decision.

CPLR 3211(a)(5).

 On a motion to dismiss the complaint as time-barred, the moving defendant must establish, prima facie, that the time in which to commence the action has expired. Where the defendant makes the prima facie showing, the burden shifts to the plaintiff to establish that the statute of limitations has not expired, that it is tolled, or that an exception applies.

Arnell Constr. Corp. v. New York City Sch. Constr. Auth., NY Slip Op 04446 (2d Dep't August 12, 2020)

Here is the decision.

Recovery in quantum merit.

The complaint will be dismissed where there is a valid contract governing the subject matter of the claim. 

D. Gangi Contr. Corp. v. City of New York, NY Slip Op 04378 (2d Dep't August 5, 2020)

Here is the decision.

Appellate practice.

No appeal lies from an order or judgment granted upon the default of the appealing party, pursuant to CPLR 5511.

Bank of N.Y. Mellon v. Fontana, NY Slip Op 04375 (2d Dep't August 5, 2020)

Here is the decision.

A claim of unlawful retaliation.

Pursuant to Executive Law § 296(1)(e), it is unlawful to retaliate against an employee who opposes discriminatory practices. To set forth a claim of unlawful retaliation, the employee must show that he or she engaged in a protected activity; that the employer was aware that the employee participated in the activity; that the employee suffered an adverse employment action; and that there is a causal connection between the employee's activity and the adverse action. When this initial burden is met, the burden shifts to the employer to present legitimate, independent, and nondiscriminatory reasons for its actions.

Matter of Copiague Union Free Sch. Dist. v. Foster, NY Slip Op 04303 (2d Dep't July 29, 2020)

Here is the decision.

CPLR Article 78 proceedings.

In order to annul an administrative determination made after a hearing, directed by law, at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination. "Substantial evidence" is relevant proof that a reasonable mind may accept as adequate to support a conclusion or ultimate fact.

Matter of Batra v. Egan, NY Slip Op 04300 (2d Dep't July 29, 2020)

Here is the decision.

A negligence action.

A plaintiff moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff, and that the defendant's negligence was a proximate cause of the alleged injuries. While the plaintiff need not establish the absence of comparative fault, the issue of a plaintiff's comparative negligence may be decided on a summary judgment motion where, as here, the plaintiff moves for summary judgment dismissing the defendant's affirmative defense of comparative negligence.

Hai Ying Xiao v. Martinez, NY Slip Op 04295 (2d Dep't July 29, 2020

Here is the decision.

Notices of appearance.

Where the plaintiff's process was a summons with notice, as authorized by CPLR 305(b), the defendant may appear in the action, and avoid a default, by timely serving a notice of appearance.

Deutsche Bank Natl. Trust Co. v. Hall, NY Slip Op 04292 (2d Dep't July 29, 2020)

Here is the decision.

CPLR 3211(a)(7).

On a motion to dismiss, the court merely examines the adequacy of the pleading, unlike a summary judgment motion, where the court searches the record and assesses the sufficiency of the parties' evidence. In considering the motion to dismiss, the court must accept the complaint's factual allegations as true, give the plaintiff the benefit of every favorable inference, and determine only whether the facts, as alleged, fit within any cognizable legal theory. 

Darden v. OneUnited Bank, NY Slip Op 04291 (2d Dep't July 29, 2020)

Here is the decision.

Summary judgment in a slip-and-fall action.

The defendant has the burden of demonstrating, prima facie, that it did not create the alleged dangerous condition, or have actual or constructive notice of it for a sufficient length of time to discover and remedy it. A property owner who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition. A question of fact regarding a recurrent dangerous condition can be established by offering evidence that an ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed.

Darbinyan v. 1806 Ocean Realty, LLC, NY Slip Op 04290 (2d Dep't July 29, 2020)

Here is the decision.