Summary judgment in a slip and fall action.

The Appellate Division unanimously the Order which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Defendant established prima facie that the complaint should be dismissed by showing that it had no actual or constructive notice of the wet condition of the stairs that plaintiff alleges caused her to slip and fall. Defendant submitted testimony by the supervisor of its building caretakers, evidence of the janitorial cleaning schedules for the building, and an affidavit by the building's caretaker that she fulfilled her regularly scheduled cleaning duties in the late afternoon of the day before plaintiff's accident, as well as the morning of the accident at about the time of the accident, that during each inspection she found the staircase clean, dry, and free of debris, and that otherwise she would have immediately addressed any dangerous condition she observed. In opposition, plaintiff failed to raise an issue of fact via her expert opinion, prepared four years after the action was commenced, which introduced new theories of liability notwithstanding her testimony that she believed that the alleged water hazard was the sole cause of the accident.  Even if, as plaintiff's expert contends, the stairs were otherwise defective, defendants are entitled to summary judgment, because there is no evidence that these defects contributed to the accident.

Villar v. New York City Hous. Auth., NY Slip Op 02505 (1st Dep't April 27, 20210

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Vicarious liability in a medical malpractice action.

The defendant-hospital cannot be held vicariously liable for any acts or omissions of the nonparty-physician who plaintiff failed to identify in his complaint or bill of particulars as a person for whose negligence the hospital could be liable.

Gambacorta v. Giordano, NY Slip Op 02454 (1st Dep't April 22, 2021)

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Subject matter jurisdiction.

A party's prior appearances and execution of a stipulation in a New York court do not constitute a waiver of his subject matter jurisdiction defense, as a defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches, or consent.

Matter of Hook v. Snyder, NY Slip Op 02458 (1st Dep't April 22, 2021)

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Dismissal of a legal malpractice claim.

The Appellate Division unanimously affirmed the Order which granted defendants' motion to dismiss the complaint. There is no basis other than speculation to support the allegation that, in the underlying action, if defendants-attorneys had served notice of entry sooner, the adverse party would not have sought leave to appeal.

Lindenwood Vil., Section C, Coop. Corp. v. Denenberg, NY Slip Op 02463 (1st Dep't April 22, 2021)

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Motion to vacate dismissal denied.

The Appellate Division affirmed the Order which denied plaintiffs' motion to vacate the earlier order that dismissed the complaint due to their default in opposing defendant's CPLR 3126(3) motion to dismiss, and their numerous failures to comply with the court's discovery orders and to appear for court conferences. Plaintiffs failed to demonstrate both an excusable default and a meritorious defense, pursuant to CPLR 5015[a]. Plaintiffs gave no reasonable excuse for their failure to oppose dismissal, their longstanding pattern of noncompliance with discovery demands and multiple court orders, or their failure to appear at scheduled court conferences. When moving for vacatur, plaintiffs failed to submit medical evidence establishing that their counsel was suffering from a mental condition which would have caused such noncompliance. Plaintiffs also failed to provide sufficient evidence of the merit of the underlying claims insofar as an independent medical examination report was submitted in place of a detailed expert affidavit. Plaintiffs' subsequent medical affidavits were improperly submitted for the first time in reply. The preference for deciding cases on the merits will not justify vacating a default judgment where the moving party has failed to satisfy its burden of establishing a reasonable excuse for the default or a meritorious case.

Liparulo v. New York City Health & Hosps. Corp., NY Slip Op 02464 (1st Dep't April 22, 2021)

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Summary judgment in a slip and fall action.

At the 50-h hearing regarding the fall on a stairwell, plaintiff offered no evidence of any defect, let alone notice of any defect. He contradicted this testimony with the errata sheet, in which he changed the theory from his foot "catching," presumably on some uneven surface, to his foot "slipping" on a "worn" surface. Plaintiff offered no explanation for the changes in the errata sheet, and so they are not cognizable and he is bound by his original hearing testimony, pursuant to CPLR 3116[a]. Plaintiff attempts to cure this defect by raising the same theory of slipping on a worn surface in his opposition affidavit. However, this raises only feigned issues of fact, however. Plaintiff attempts to generate issues of fact by pointing to the testimony of one of defendant's witnesses to the effect that, after the fall, the New York City Department of Buildings issued a violation and the New York City Department of Citywide Administrative Services replaced all of the steps in the subject building and improved the steps' tread and nosing. However, evidence of post-accident repairs is inadmissible and cannot be used as prior notice of a defect. The fact that the evidence of subsequent repairs might be admissible to show that defendant knew the location of the accident does not render the evidence admissible as proof of fault, nor cure the lack of any triable issue of fact on that account.

Lopez v. City of New York, NY Slip Op 02465 (1st Dep't April 22, 2021)

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Appellate practice.

Defendants may not argue for the first time on appeal that they are entitled to the recklessness standard of care of Vehicle and Traffic Law § 1103(b), because the question of whether the statute is applicable to this traffic accident is not a pure question of law and depends on facts that are not in the record. 

Salodkaya v. City of New York, NY Slip Op 02478 (1st Dep't April 22, 2021)

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Service of process.

The Appellate Division reversed the Order which denied defendant's motion to vacate the default judgment or to dismiss the action, and granted the motion to the extent of remanding the matter for a traverse hearing to determine whether the court had jurisdiction to render the default judgment. Defendant's sworn, nonconclusory statement and documentary evidence that the apartment at which he allegedly was served was not his actual dwelling place or usual place of abode raised an issue of fact as to whether plaintiff validly served him with process pursuant to CPLR 308(2). Accordingly, a traverse hearing should be held to determine whether defendant is entitled to relief from the judgment pursuant to CPLR 5015(a)(4).

U.S. Bank N.A. v. Abu, NY Slip Op 02480 (1st Dep't April 22, 2021)

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Sanctions.

The Appellate Division determined that the trial court providently declined to award sanctions to plaintiff. Defendants' conduct during discovery in serving purportedly deficient boilerplate initial responses, later supplemented by thorough responses, did not rise to the level of frivolous conduct warranting sanctions under 22 NYCRR 130-1.1.

YRN LLC v. Migos LLC, NY Slip Op 02482 (1st Dep't April 22, 2021)

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A motion to change venue.

The Appellate Division found that Supreme Court improvidently exercised its discretion in granting defendants' motion, and reversed. Defendants failed to show the existence of material witnesses who would be inconvenienced and the substance of their testimony, pursuant to CPLR 510[3]. In fact, defendants did not identify any proposed nonparty witnesses and merely claimed, without any evidentiary support, that material witnesses would be inconvenienced by having to travel to Bronx County. The presumption that a witness will be inconvenienced merely because the courthouse is in a different county is unwarranted, and while the county of occurrence is a factor to be considered, defendants still had the burden of showing the inconvenience that would be sustained by the witnesses if required to testify in Bronx County.

Tawiah v. McNiff, NY Slip Op 02374 (1st Dep't April 20, 2021)

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Economic duress in contract.

The mere threat by one party to breach a contract by not delivering merchandise, though wrongful, does not, in and of itself, constitute economic duress. It must also appear that the threatened party could not obtain the goods from another source and the ordinary remedy of an action for breach of contract would be inadequate. In addition, one who seeks to recover based on economic duress must act promptly to make its claim known, and its failure to act can be viewed as a ratification of a contractual modification. Here, the court properly found that plaintiff failed to demonstrate a triable issue of fact as to why an action for breach of contract would have been inadequate at the time of the breach, and why it waited 2 ½ years to bring the action.

Gateway Overseas Inc. v. Sumec Textile & Light Indus. Co., Ltd., NY Slip Op 02342 (1st Dep't April 15, 2021)

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