CPLR 3116[a].

The rejection of a party's errata sheet for his deposition testimony does not render the errata sheet inadmissible. Here, the plaintiff's statement of the reasons for making the revisions was sufficient justification for the five minor changes that he made, which were consistent with other portions of his testimony. Accordingly, the weight to be afforded to the plaintiff's errata sheet and the effect on his credibility, if any, are issues to be assessed by the trier of fact.

Hernandez v. NY Prepaid Wireless LLC, NY Slip Op 03573 (1st Dep't June 2 2022)

Here is the decision.

Judicial estoppel and res judicata.

A party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because its interests have changed. Here, the doctrine of judicial estoppel is inapplicable because the plaintiff did not receive a favorable judgment in the prior proceeding.

Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding. Here, the docrrine is inapplicable because the 2013 action was dismissed for lack of standing, without reaching the merits of the foreclosure claim itself.

Capital One, N.A. v. Trubitsky, NY Slip Op 03492 (2d Dep't June 1, 2022)

Here is the decision.

Real estate commissions.

A real estate broker claiming entitlement to an earned commission must allege that he was the procuring cause of the transaction. There must be a showing of something beyond the broker's mere creation of an amicable atmosphere or an amicable frame of mind that might have led to the ultimate transaction, but the broker need not control the transaction, and the broker need not negotiate the transaction's final terms or be present at the closing. The procuring cause standard applies equally to causes of action sounding in breach of contract and quasi contract, such as claims for quantum meruit and unjust enrichment.

LHWS LLC v. S.L. Green Realty Corp., NY Slip Op 03574 (1st Dep't June 2, 2022)

Here is the decision.

Civil contempt.

In order to prevail on a motion to hold another party in civil contempt, the movant must prove, by clear and convincing evidence: (1) that a lawful court order was in effect, clearly expressing an unequivocal mandate; (2) the appearance, with reasonable certainty, that the order was disobeyed; (3) that the party to be held in contempt had knowledge of the court's order; and (4) prejudice to the right of a party to the litigation. The burden then shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order.

Board of Mgrs. of Brightwater Towers Condominium v. M. Marin Restoration, Inc., NY Slip Op 03491 (2d Dep't June 1, 2022)

Here is the decision.

CPLR 7804[g].

Where an Article 78 petition raises an issue of substantial evidence, the Supreme Court should transfer the petition to the Appellate Division for disposition.

Matter of 475 Kent Owner, LLC v. New York City Loft Bd., NY Slip Op 03568 (1st Dep't June 2, 2022)

Here is the decision.

A hostile environment claim.

The cause of action requires allegations of repeated conduct, not discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire.

Blackman v. Metropolitan Tr. Auth., NY Slip Op 03490 (2d Dep't June 1, 2022)

Here is the decision.

Appellate practice.

An argument that is not raised before the motion court may be considered on appeal if it appears on the face of the record, involves no new facts, and could not have been avoided if it had been timely raised.

Peralta v. City of New York, NY Slip Op 03579 (1st Dep't June 2, 2022)

Here is the decision.

Defaults.

By failing to answer, the defaulting defendants are deemed to have admitted the factual allegations in the complaint.

State Farm Fire & Cas. Co. v. Axial Chiropractic, P.C., NY Slip Op 03487 (1st Dep't May 31, 2022)

Here is the decision.

Failure-to-warn liability.

Liability is intensely fact-specific, with issues including, but not limited to, the feasibility and difficulty of issuing warnings in the circumstances; the obviousness of the risk from actual use of the product; the user's knowledge of the product; and proximate cause. Recovery may properly be denied to a product user who was fully aware of the hazard through general knowledge, observation, or common sense. For that reason, courts could decide, as a matter of law, that a manufacturer's warning would have been superfluous given the injured party's actual knowledge of the specific hazard that caused the injury. However, even if a product user has some degree of knowledge of the potential hazards in the use of a product, summary judgment will not lie where reasonable minds might disagree as to the extent of that knowledge.

Vasquez v. Ridge Tool Pattern Co., NY Slip Op 03488 (1st Dep't May 31, 2022)

Here is the decision.

CPLR 3126.

The motion court considered plaintiff's objections to discovery demands and found them inadequate, given that there are two inconsistent documents in the record. Further, plaintiff had not provided an affidavit concerning its search for documents, and had not produced a witness for deposition. After issuing a conditional order of dismissal, the motion court does not have to inquire into whether plaintiff's noncompliance with discovery was willful. 

Wilmington Sav. Fund Socy, FSB v. Donaldson, NY Slip Op 03465 (1st Dep't May 26, 2022)

Here is the decision.