The "danger invites rescue" doctrine.

Under the doctrine, there is a duty of care toward a potential rescuer where a culpable party has put another person in a position of imminent peril which invites the rescuing plaintiff to come to the aid of the person in peril. The doctrine applies where a potential rescuer reasonably believes that another is in peril, and the court will decide the applicability of the doctrine on the facts and circumstances of each case. Here, the plaintiff was an emergency medical technician who slipped on ice while transporting a patient from the sidewalk to the ambulance.  The doctrine is inapplicable, as there is no evidence that plaintiff was unable to see and avoid the slippery condition on the basis that the patient was endangered if she was not transported immediately to the hospital.

Benny v. Concord Partners 46th St. LLC, NY Slip Op 01550 (1st Dep't March 18, 2021)

Here is the decision.

A claim of trade libel.

Plaintiffs allegations that, upon information belief, they "lost multiple clients based on the series of websites published by the Pacellis and John Does" and that they "have had to pay expenses to protect their reputation, including an online reputation management and monitoring company and attorneys" are insufficient to plead the special damages element of the cause of action. 

Cedeno v. Pacelli, NY Slip Op 01552 (1st Dep't March 18, 2021)

Here is the decision.

Arbitrability of discrimination claims.

The Appellate Division unanimously reversed the Order which denied defendant's motion to compel arbitration of plaintiff's claims of sexual harassment in the workplace and retaliation, and granted the motion. Generally, when a contract delegates the arbitrability question to an arbitrator, a court may not override the contract and has no power to decide the arbitrability issue. Here, though, the motion court properly undertook an analysis of the threshold question of the arbitration agreement's enforceability because plaintiff's sexual harassment claims involve strong public policy considerations and the application of CPLR 7515, which prohibits agreements that compel arbitration of discrimination claims. Plaintiff's reliance on CPLR 7515 is unavailing, as it is not applicable to arbitration agreements, like the one at issue, that were entered into before the statute was enacted in 2018. Accordingly, the Appellate Division did not have to resolve defendant's further contention that the Federal Arbitration Act, which is expresly applicable to the employment agreement at issue here, is inconsistent with, and therefore displaces, CPLR 7515 to the extent that it prohibits outright a specific type of claim. Plaintiff's contention that revisions to defendant's employee handbook, rendered in 2018, superseded the arbitration agreement is also unavailing. The issue of whether the policy revisions supersede the arbitration agreement is one for the arbitrator to decide, as the arbitration agreement contains a delegation clause and this issue does not involve strong public policy considerations.

Newton v. LVMH Moet Hennessy Louis Vuitton Inc., NY Slip Op 01558 (1st Dep't March 18, 2021)

Here is the decision.

An untimely notice of claim.

The Appellate Division unanimously affirmed the Order which granted defendants' motion to dismiss the complaint for failure to file a timely notice. Plaintiff failed to establish that defendants should be equitably estopped from asserting the defense that she has not complied with the statutory requirements, because she made no showing that the City engaged in conduct that misled or discouraged her from serving a timely notice or making an application for leave to file a late notice before the limitations period expired. Defendants' answer, which was served when plaintiff still had time to seek leave to file a late notice, notified her that there had been a problem with service of the notice because defendants' answer denied that the notice had been properly served. The fact that defendants litigated the matter and did not move for dismissal until after the limitations period had expired does not establish that defendants should be estopped from asserting a statute of limitations defense.

Tirado v. City of New York, NY Slip Op 01564 (1st Dep't March 18, 2021)

Here is the decision.

CPLR 3212(f).

In this personal injury action, defendant's summary judgment motion was denied as premature, as depositions had not yet been held and the facts essential to oppose the motion are within defendant's exclusive knowledge and control.

Thomas v. Triboro Maintenance Corp., NY Slip Op 01526 (1st Dep't March 16, 2021)

Here is the decision.

The faithless servant doctrine.

Pursuant to the doctrine, an employee or agent who is faithless in the performance of his duties is not entitled to recover either salary or commission. Here, defendant, a nonmanaging member of plaintiff, was not an employee and is not alleged to have acted on plaintiff's behalf as its agent, and there are no allegations that he funneled business away to a competitor or engaged in theft. Accordingly, the Appellate Division determined that plaintiff's faithless servant claim was correctly dismissed.

Two Rivs. Entities, LLC v. Sandoval, NY Slip Op 01527 (1st Dep't March 16, 2021)

Here is the decision.

Collateral estoppel.

Defendant's contention that there is an issue of fact as to whether she was terminated from her position as a physician with plaintiff without giving the 90 days' notice required by her employment contract, or was verbally terminated by plaintiff's administrator is barred by the doctrine of collateral estoppel. In a separate action brought by defendant against the administrator, the court granted the administrator's motion to dismiss the action based on documentary evidence refuting defendants allegation that the administrator verbally terminated her before she resigned. Since the prior order addressed the same factual issue and found against defendant on the merits, she is precluded from relitigating that issue in this action.

14th Street Med., P.C. v. Epstein, NY Slip Op 01496 (1st Dep't March 16, 2021)

Here is the decision.

Appellate practice.

The Appellate Division unanimously dismissed as moot the appeal from the Order which granted defendant-restaurant's motion to compel plaintiff to appear for a further deposition to answer questions relating to brain imaging and a motor vehicle accident that post-dated her fall, and to provide authorizations for medical records related to the imaging and the accident. Plaintiff's appeal is moot since the deposition to which she objects has already been held, she has provided authorizations for the medical records at issue, and she made no attempt to maintain the status quo prior to this appeal.

Salomon v. United States Tennis Assn., NY Slip Op 01492 (1st Dep't March 8, 2021)

Here is the decision.

CPLR 510(3).

Where venue has properly been designated by the plaintiff based on the residence of either party, a defendant seeking a change of venue under CPLR 510(3) must make a detailed evidentiary showing that the nonparty witnesses will, in fact, be inconvenienced absent such relief. The movant's affidavit must (1) contain the names, addresses, and occupations of witnesses expected to be called; (2) disclose the facts upon which the witnesses are expected to testify, in order that the court may determine whether the witnesses are material and necessary; (3) demonstrate that the witnesses are willing to testify; and (4) show that the witnesses would be inconvenienced absent the change in venue.

10 Two Trees Lane LLC v. Mahoney, NY Slip Op 01371 (1st Dep't March 9, 2021)

Here is the decision.

Arbitrable and non-arbitrable claims.

Where arbitrable and non-arbitrable claims are inextricably interwoven, the court will stay the judicial proceedings pending completion of the arbitration, particularly where, as here, the determination of issues in arbitration may dispose of nonarbitrable matters. The litigation was correctly stayed as to the individual defendants, who, although nonsignatories to the arbitration agreements, were employees, partners, and agents of defendant during the relevant time period and, acting for defendant, performed services for plaintiffs.

T & M Trusteeship & Mgt. Servs. SA v. BDO USA, LLP, NY Slip Op 01494 (1st Dep't March 11, 2021)

Here is the decision.

Collateral estoppel, affidavits, and notices to admit.

The Appellate Division unanimously affirmed, with costs, the Order denying the parties' motions for summary judgment. The doctrine of collateral estoppel does not bar litigation of the issues decided in a Civil Court order and judgment entered in an earlier action between the parties since it was later vacated by the Appellate Term for lack of subject matter jurisdiction. Plaintiff failed to show prejudice arising from the motion court's acceptance of defendant's principal's corrected affidavit, originally submitted as an affirmation, pursuant to CPLR 2106. Nor can plaintiff rely on defendant's failure to respond to its notice to admit in support of its summary judgment motion because a notice to admit may not be used to request admission of material issues or ultimate or conclusory facts, or facts within the unique knowledge of other parties. Rather, a notice to admit is only properly used to eliminate from trial matters which are easily provable and about which there can be no controversy. Based on these principles, plaintiff's motion was properly denied. 

Utopia Heart Care, P.L.L.C. v. Gramercy Cardiac Diagnostic Servs., P.C., NY Slip Op 01373 (1st Dep't March 9, 2021)

Here is the decision.