The Appellate Division determined that, on a motion for summary judgment in this medical malpractice action, it was within the motion court's discretion to permit defendants, in their reply, to cure the technical defects in their expert's affirmation with an amended affirmation that included the term "under penalty of perjury."
Bamberg-Taylor v. Strauch, NY Slip Op 01227 (1st Dep't March 2, 2021)
The Appellate Division unanimously affirmed the Order which granted defendants' motions for summary judgment dismissing the complaint. Their expert meteorologist opined that the icy condition on the staircase where plaintiff fell was the result of snowfall that day, which stopped approximately 35 to 40 minutes prior to the accident. A reasonable amount of time had not elapsed between the end of the snowfall and the accident to charge defendants with notice of the icy condition and a duty to remedy the condition. Further, plaintiff testified that she had not seen ice on the steps at any time before her accident. In opposition, plaintiff failed to raise an issue of fact. Her expert's conclusion that the melting and refreezing of accumulated snow from prior to the snowfall caused plaintiff's fall was speculative.
Ponce v. BLDG Orchard, LLC, NY Slip Op 01215 (1st Dep't February 25, 2021)
The privilege applies where the communications at issue are otherwise protected under the attorney-client privilege and are made in furtherance of a legal interest or strategy common to the parties invoking the privilege. The proponent of the privilege has the burden of establishing that the information sought is immune from disclosure.
Stafford v. A&E Real Estate Holdings, LLC, NY Slip Op 01956 (1st Dep't March 30, 2021)
The Appellate Division unanimously reversed, on the law and the facts, with costs, the Order which denied third-party defendant's motion to dismiss the third-party complaint as against it. This is a putative class action in which plaintiff seeks to recover charges purported to be gratuities allegedly withheld from him and other catering service workers. The complaint alleges that defendant assessed mandatory charges to its customers, allowing them to believe that the charges were gratuities that would be distributed to waitstaff, and, instead, kept the charges for itself. Defendant commenced a third-party action against the company that supplied the waitstaff, seeking indemnification for damages that may be recovered from defendant in the first-party action. However, the third-party complaint alleges that defendant's mandatory charges to its customers were used to cover its own discretionary costs and does not allege that these charges were ever paid to or shared with third-party defendant. Moreover, there is no allegation either in the complaint or third-party complaint that third-party defendant wrongfully withheld any mandatory charges from the waitstaff. Further, defendant does not dispute third-party defendant's contention that it had nothing to do with defendant's decision to impose the mandatory charges or to retain them. Accordingly, defendant has not stated a cause of action for implied indemnification against third-party defendant.
Robinson v. Foremost Glatt Kosher Caterers, Inc., NY Slip Op 01219 (1st Dep't February 25, 2021)
Plaintiff was loading garbage into the rear of a garbage truck stopped on the side of the road when the front corner of defendant driver's vehicle struck the rear corner of the truck and plaintiff. A rear-end collision with a stopped vehicle creates a presumption that the moving vehicle's operator was negligent, so that an injured plaintiff is entitled to summary judgment on liability unless the driver of the second vehicle provides a non-negligent explanation for the collision. Defendant's explanation that he was suddenly blinded by the glare of the sun rising in the east as he was driving in that direction is insufficient to raise a non-negligent explanation for the collision. Although sun glare may contribute to an emergency situation, the ordinary circumstance of the sun's rising while a driver is heading east is not an emergency within the meaning of the doctrine. The fact that the truck was partly protruding into the driving lane was merely the occasion for the accident when defendant driver was temporarily blinded by the sun's glare.
Practice point: The grant of summary judgment was not premature since defendant did not demonstrate the need for any discovery concerning how the accident occurred.
Rodriguez v. Beal, NY Slip Op 01220 (1st Dep't February 25, 2021)
The Appellate Division unanimously affirmed, with costs, the Order which granted defendant's motion for summary judgment dismissing the complaint, finding that the motion court correctly enforced the contract in accordance with its plain terms. Plaintiff's contention that it is entitled to an additional, extra-contractual credit of $120,000, which it claims was paid to defendant two years before the contract was entered into, is insufficient to create an ambiguity, as such a fundamental condition would not have been omitted. In addition, the consideration of plaintiff's extrinsic evidence is contrary to the parol evidence rule. Plaintiff's contention that it was entitled to an adjournment of the closing date because there was no time of the essence language in the contract is unavailing. As the contract had a specific termination provision, a time of the essence provision was unnecessary. Plaintiff's argument that defendant anticipatorily breached the contract is also unavailing. Defendant's counsel prepared all of the documents required to close at the appointed time and place, and it was plaintiff that committed the breach by failing to appear with the required funds.
USA Recycling Inc. v. Baldwin Endico Realty Assoc., Inc., NY Slip O[ 01222 (1st Dep't February 25, 2021)
Plaintiffs' contention that World Rugby is subject to jurisdiction pursuant to CPLR 302(a)(3)(ii) is unavailing because plaintiffs did not plead that New York is the situs of the alleged commercial injury they sustained. Instead, plaintiffs allege World Rugby made fraudulent statements and procured USA Rugby's breach of its contract with USA Sevens LLC in Ireland. Thus, the original critical events did not occur in New York, and the fact that plaintiffs may have suffered economic loss in New York is an insufficient basis upon which to base personal jurisdiction. Plaintiffs also contend that World Rugby is subject to jurisdiction pursuant to CPLR 302(a)(1). Plaintiffs argue that World Rugby transacted business in New York by engaging in a 13-year relationship with them and by negotiating the 2014 Host Union Agreement in New York. However, plaintiffs fail to allege a sufficient nexus between the parties' broad, overall relationship and plaintiffs' specific claims in this suit.
USA Sevens LLC v. World Rugby Ltd., NY Slip Op 01223 (1st Dep't February 25, 2021)
The Appellate Division unanimously reversed, on the law and with costs, the Order which denied defendants" motion to compel arbitration, and granted the motion. Paragraph 18 of the parties" exhibit space agreement, titled "Disputes," provides broadly that "[a]ny and all disputes or claims . . . will be resolved in binding arbitration, rather than in court." The agreement also expressly incorporates the Commercial Arbitration Rules of the American Arbitration Association (AAA), of which Rule 7(a) states, "The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim." These provisions demonstrate the parties" clear and unmistakable intent to delegate the threshold arbitrability question to the AAA.
Anima Group, LLC v. Emerald Expositions, LLC, NY Slip Op 01138 (1st Dep't February 18, 2021)
The Appellate Division unanimously reversed, on the law, the Order which denied the individual defendants' motion for summary judgment dismissing the aiding and abetting claim asserted against him. The claim must be dismissed because there is no evidence of the requisite community of purpose between him and plaintiff's coworkers. There is no indication that he was aware of any of the coworkers' actions, and an aiding and abetting claim cannot be based on an individual's own conduct.
Bistreich v. City of New York, NY Slip Op 01118 (1st Dep't February 18, 2021)
Although the motion court purported to deny respondent's motion for reargument, it effectively granted the motion by addressing the merits. Accordingly, the order is appealable, pursuant to CPLR 5701[a][2][viii].
Matter of Country-Wide Ins. Co. v. TC Acupuncture, P.C., NY Slip Op 01120 (1st Dep't February 18, 2021)
The Appellate Division affirmed the Supreme Court's determination that the Department of Education did not constructively deny petitioner's first FOIL request, pursuant to 21 NYCRR 1401.5[d]. Under FOIL, any person may request and receive documents kept by a government agency, unless they are statutorily exempted from disclosure, and the burden rests on the agency to demonstrate the applicability of an exception. Here, the record does not establish how the unspecified litigation records, as well as the hearing and 10-day numbers requested by petitioner, if redacted, would allow a person in the school community to identify students with reasonably certainty, citing Public Officers Law § 87[2][a], [b]; 34 CFR § 99.3. Accordingly, the Appellate Division remanded for an in camera review of the documents and numbers to evaluate whether the exceptions are applicable.
Matter of Cuddy Law Firm, P.L.L.C. v. New York City Dept. of Educ., NY Slip Op 01121 (1st Dep't February 18, 2021)