A premises liability action.

The defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the injury without engaging in speculation. Here, the defendant met his prima facie burden through the submission of the transcript of the plaintiff's deposition testimony, which demonstrated that the plaintiff was unable to identify either where on the brick path his injury occurred or what defect in the brick path, if any, caused his ankle to roll.  In opposition, the plaintiffs failed to raise a triable issue of fact. Plaintiffs' expert report failed to establish a causal link between the alleged injury and unspecified defects in the brick path that the expert observed more than four years after the injured plaintiff's accident.

Mercurio v. Dayton, NY Slip Op 04298 (2d Dep't July 6, 2022)

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CPLR 3212[f].

If it appears from affidavits submitted in opposition to a summary judgment motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had. Here, plaintiff's motion on the issue of liability is denied without prejudice to renewal upon the completion of discovery.

Goldfinger v. Freeland, NY Slip Op 04295 (2d Dep't July 6, 2022)

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Discovery.

A party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records when that party has waived the physician-patient privilege by affirmatively putting his physical or mental condition in issue. However, a party does not waive the physician-patient privilege with respect to unrelated illnesses or injuries. Here, the plaintiff does not advance broad allegations of physical injury or mental anguish, does not claim exacerbation of preexisting medical conditions in his shoulder or knees, and has expressly disavowed any claim for loss of enjoyment of life, mental anguish, future earnings, or diminished wage capacity. Instead, the plaintiff's allegations and claim for damages are limited to specific injuries to his left elbow and the residual physical effects of that particular injury. Accordingly, the plaintiff has not placed in controversy either his entire medical condition or the prior injuries and medical treatment of his shoulder and knees. The Supreme Court providently exercised its discretion in denying the defendants' motion to compel.

Froehlich v. Kimco Realty Corp., NY Slip Op 04294 (2d Dep't July 6, 2022)

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Judicial privilege.

Statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, regardless of the motive with which they are made, as long as they are material and pertinent to the issue to be resolved in the proceeding. Here, so much of the complaint as sought to recover damages for the defendant's alleged misrepresentations made during the course of litigation was subject to dismissal for failure to state a claim, pursuant to CPLR 3211(a)(7). However, the privilege does not bar the complaint in its entirety, as each of the eight causes of action also alleges wrongdoing that did not stem from a privileged communication.

Feng Li v. Shih, NY Slip Op 04293 (2d Dep't July 6, 2022)

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An action to foreclose the mortgage on a home loan.

RPAPL 1304 requires at least 90 days notice to the borrower before a lender, an assignee, or a mortgage loan servicer commences the action. The statute provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower. Strict compliance with the statutory notice is a condition precedent to commencing the action, and the plaintiff has the burden of establishing satisfaction of this condition.

Federal Natl. Mtge. Assn. v. Young, NY Slip Op 04292 (2d Dep't July 6, 2022)

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Contract law and illiteracy.

A claim of illiteracy in the English language is insufficient to avoid the rule that a party who signs a contract without any valid excuse for having failed to read it is conclusively bound by its terms. A party who cannot read English must make an effort to have the document read to him. 

Emigrant Mtge. Co., Inc. v. Public Adm'r of Kings County, NY Slip Op 04291 (2d Dep't July 6, 2022)

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The Workers' Compensation Law.

Pursuant to the statute, an employee's recovery of workers' compensation benefits is the exclusive remedy against his employer or coworkers for injuries sustained in the course of employment. Here, summary judgment dismissing the complaint is denied because the defendants submitted conflicting evidence regarding the identity of the plaintiff's employer.

Calixte v. City of New York, NY Slip Op 04286 (2d Dep't July 6, 2022)

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CPLR 3012(d).

On the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served. Here, in order to compel the plaintiff to accept her untimely answer, the defendant was required to demonstrate both a reasonable excuse for the delay and a potentially meritorious defense. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. The Appellate Division held that the Supreme Court improvidently exercised its discretion in finding that the defendant proffered a reasonable excuse for her untimely answer. The bare allegation by the defendant's attorney that the delay was caused by the defendant's insurance carrier is insufficient to excuse the delay in answering the complaint. The absence of a reasonable excuse for the default renders it unnecessary to determine whether she demonstrated the existence of a potentially meritorious defense. 

Goldstein v Ilaz, NY Slip Op 04154 (2d Dep't June 29, 2022)

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An insufficient slip-and-fall claim.

The plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Barnett v. Fusco, NY Slip Op 04147 (2d Dep't June 29, 2022)

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CPLR 3101(a).

Parties are entitled to full disclosure of all matter that is material and necessary in the prosecution or defense of the action. The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the trial court.

Andrade v. Frog Hollow Indus., Inc., NY Slip Op 04146 (2d Dep't June 29, 2022)

Here is the decision.