Discovery disputes.

The resolution of discovery disputes is within the sound discretion of the motion court. Striking a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious, pursuant to  CPLR 3126[3]. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time.

Ewa v. City of New York, NY Slip Op 04825 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

No appeal lies as of right from an order that does not decide a motion made on notice, pursuant to CPLR 5701(a)(2).

Deutsche Bank Natl. Trust Co. v. Brown, NY Slip Op 04824 (2d Dep't September 2, 2020)

Here is the decision.

Inquests.

At the inquest, the sole issue is the extent of plaintiff's damages, and the inquest court should not consider the question of whether the defsndant caused the damages. At an inquest to ascertain damages upon a defendant's default, the plaintiff may submit proof by written sworn statements of the witnesses, pursuant to  CPLR 3215[b] and 22 NYCRR 202.46[b]. However, if the defaulting defendant gives notice that he will appear at the inquest, the plaintiff must make the witnesses available for cross-examination.

Castaldini v. Walsh, NY Slip Op 04822 (2d Dep't September 2, 2020)

Here is the decision.

Collateral estoppel.

Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, regardless of whether the courts or the causes of action are the same. Collateral estoppel allows the determination of an issue of fact or law raised in a subsequent action by reference to a previous judgment on a different cause of action in which the same issue was necessarily raised and decided.

Broder v. Pallotta & Assoc. Dev., Inc., NY Slip Op 04821 (2d Dep't September 2, 2020)

Here is the decision.

Appellate practice.

On an appeal from a final judgment, the Appellate Division may review any intermediate order which necessarily affects the judgment, including any order that was adverse to the respondent on appeal and which, if reversed, would entitle the respondent to prevail, pursuant to  CPLR 5501[a][1].

Badr v. Blumberg, NY Slip Op 04819 (2d Dep't September 2, 2020)

Here is the decision.

Trusts.

Pursuant to § 17(e) of the Restatement (Second) of Trusts, a trust may be created by "a promise by one person to another person whose rights thereunder are to be held in trust for a third person."

Zachariou v. Manios, NY Slip Op 04811 (1st Dep't August 27, 2020)

Here is the decision.

Choice of law.

Choice of law provisions typically apply to substantive issues, not procedural ones. However, the question of whether a plaintiff has standing is a procedural matter, and procedural matters are governed by the law of the forum state. Here, the motion court properly applied New York law to determine whether plaintiff has standing.

Zachariou v. Manios, NY Slip Op 04811 (1st Dep't August 27, 2020)

Here is the decision.

Contract damages.

The purpose of contract damages is to put the non-breaching party in the position it would have been in if the other party had performed.

U-Trend N.Y. Inv. L.P. v. US Suite LLC, NY Slip Op 04810 (1st Dep't August 27, 2020)

Here is the decision.

The reckless disregard standard of care.

The reckless disregard standard of care, codified in Vehicle and Traffic Law § 1104(e), applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.

Edwards v. Menzil, NY Slip Op 04728 (2d Dep't August 26, 2020)

Here is the decision.

A municipality's liability.

A municipality that has adopted a prior written notice law is not liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies. There are two exceptions to the prior written notice requirement: where an affirmative act of negligence by the municipality creates the defect, or where a special use of the property confers a special benefit upon the municipality.

D. D. v. Incorporated Vil. of Freeport, NY Slip Op 04727 (2d Dep't August 26, 2020)

Here is the decision.

The storm in progress rule.

Under the rule, a property owner is not responsible for accidents occurring as a result of the accumulation of snow and ice until an adequate period of time has passed following the storm's cessation to give the owner an opportunity to ameliorate the hazards caused by the storm. On a motion for summary judgment, the question of what is a reasonable period of time may be decided as a matter of law, based on the circumstances of the case.

Bryant v. Retail Prop. Trust, NY Slip Op 04725 (2d Dep't August 26, 2020)

Here is the decision.