Christmas Eve 1964.

Limitations period on an incidental claim.

Plaintiff's claim for fraud is incidental to his conversion claim, and so it is subject to the three-year limitations period as applicable to the conversion claim.

Lyman v. J.P. Morgan Chase & Co., NY Slip Op 06954 (1st Dep't December 14, 2021)

Here is the decision.

CPLR 3123.

A notice to admit is limited to admissions regarding facts as to which the party requesting the admission reasonably believes there can be no substantial dispute.

Marchese v. Aston, NY Slip Op 06959 (1st Dep't December 14, 2021)

Here is the decision.

Indemnification.

A party may not recover in common-law indemnity for its own breach of contract. 

Shah v. 20 E. 64th St., LLC, NY Slip Op 06071 (1st Dep't December 14, 2021)

Here is the decision.

A dismissed trip and fall action.

The City established prima facie that it adequately designed, constructed, and maintained its roadway in a reasonably safe condition, including the median barrier at issue. Plaintiff's expert opined that good and accepted engineering and transportation industry safety practices required that the barrier have reflective tape or paint on it and that the opening be enlarged or the crosswalk narrowed. However, the opinion is unsupported by a published standard or evidence that the practices are generally accepted. Moreover, plaintiff's photograph, which purported to show the lighting conditions on the night of the accident, was unauthenticated, as plaintiff failed to aver that the photograph was taken at the actual location, he had disclaimed having any photographs of the location at his deposition 18 months after the accident, and another witness testified that he was unsure which intersection was depicted.

Warshak v. City of New York, NY Slip Op 06974 (1st Dep't December 14, 2021)

Here is the decision.

CPLR 309.

"Personal service upon an infant shall be made by personally serving the summons within the state upon a parent or any guardian or any person having legal custody or, if the infant is married, upon an adult spouse with whom the infant resides, or, if none are within the state, upon any other person with whom he resides, or by whom he is employed." Here, the process server attested that he served the infant-defendant pursuant to CPLR 308(2) by delivering a copy of the summons and complaint to the housekeeper at the infant's dwelling place and then completing the requisite mailing. Thus, the action is jurisdictionally defective as against the infant. Because the Supreme Court never had personal jurisdiction over the infant, it was improper to amend the summons and complaint to substitute the guardian, in her representative capacity, as a party-defendant in the infant's place.

US Bank N.A. v. McGown, NY Slip Op 06879 (2d Dep't December 8, 2021)

Here is the decision.

Apellate practice.

The Appellate Division will not consider an argument that presents factual issues that were not submitted to the motion court.

Hess v. EDR Assets LLC, NY Slip Op 06920 (1st Dep't December 9, 2021)

Here is the decision.

Arbitrability.

The courts will decide the issue of arbitrability unless there is a clear and unmistakable agreement to arbitrate the issue. Here, there is such an agreement because the parties incorporated the American Arbitration Association's rules into their arbitration provision.

Schindler v. Cellco Partnership, NY Slip Op 06931 (1st Dep't December 9, 2021)

Here is the decision.

Vacating an arbitration award.

A court may vacate the award only if it violates strong public policy, is irrational, or exceeds a specifically enumerated limitation on the arbitrator's power, pursuant to CPLR 7511[b][1] [iii]. Under the Federal Arbitration Act (FAA), the arbitrator may be deemed to have exceeded his powers by manifestly disregarding the law, but only where some egregious impropriety is apparent.

Matter of Anderson v. AHS (At Home Solutions, LLC), NY Slip Op 06917 (1st Dep't December 9, 2021)

Here is the decision.

Implied easements.

The easement may be implied from pre-existing use on a showing of three elements: 1) unity and subsequent separation of title; (2) prior to separation, the claimed easement must have been so long continued and obvious or manifest as to show that it was meant to be permanent; and (3) the use must be necessary to the beneficial enjoyment of the land retained, and not merely convenient. The law does not favor implied easements.

Bonadio v. Bonadio, NY Slip Op 06830 (2d Dep't December 8, 2021)

Here is the decision.

Summary jdugement and discovery.

The Appellate Division rejected defendant's argument that summary judgment was premature on the ground that additional discovery was necessary. The action was commenced in 2017, and defendant did not move to strike the note of issue that was filed in 2019. Discovery is closed, and, in any event, the record supports plaintiff's assertion that defendant was afforded every opportunity to engage in meaningful discovery, but chose not to do so.

Signature Fin. LLC v. Garber, NY Slip Op 06784 (1st Dep't December 2, 2021)

Here is the decision.