There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.
Maldonado v. Allum, NY Slip Op 04798 (2d Dep't August 3, 2022)]
While a possessor of real property has a duty to maintain its premises in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous.
Hallahan v. City of New York, NY Slip Op 04791 (2d Dep't August 3, 2022)
A defendant is deemed to have constructive notice of a dangerous condition on its property when the condition is visible and apparent, and existed for a sufficient length of time prior to the accident to permit the defendant's employees to discover the condition and remedy it. In moving to dismiss on basis of notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the accident. Mere reference to the defendant's general daily cleaning practices will not suffice. Here, the affidavit of the defendant's groundskeeper, who described his general daily cleaning practices, failed to establish, prima facie, that the defendant lacked constructive notice of the dangerous condition.
Hegeman v. City of Newburgh, NY Slip Op 04792 (2d Dep't August 3, 2022)
A plaintiff is not required to establish his freedom from comparative negligence to be entitled to summary judgment on the issue of liability. However, the issue of the plaintiff's comparative negligence may be decided on a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.
Ellerin-Diefenbach v. Autumn Sky Dev. Co., Inc., NY Slip Op 04789 (2d Dep't August 3, 2022)
Courts have no authority to dismiss an action for failure to prosecute, whether on the ground of general delay or for failure to serve and file a note of issue, unless there has first been served a 90-day notice, pursuant to CPLR 3216[b][3].
Cooper v. Mt. Sinai Hosp., NY Slip Op 04787 (2d Dep't August 3, 2022)
Generally, an appeal from a final judgment brings up for review any non-final judgment or order which necessarily affects the final judgment, pursuant to CPLR 5501[a][1]. However, since no appeal lies from an order denying reargument, the order denying defendants' motion for leave to reargue their prior motion to dismiss is not brought up for review. Where a judgment is based on the appellant's default, review is limited to matters which were the subject of contest below Thus, the order granting plaintiff's unopposed motion to strike defendants' answer and for leave to enter a default judgment on the issue of liability is not reviewable on the appeal from the judgment.
Brightside Home Improvements, Inc. v. Northeast Home Improvement Servs., NY Slip Op 04785 (2d Dep't August 3, 2022)
Plaintiff appeals from an order denying its motion for summary judgment on the complaint. The Appellate Division reverses and grants the motion. Plaintiff established, prima facie, its entitlement to judgment as a matter of law by submitting a copy of the note and defendant's payment history, evincing defendant's obligations under the note and his failure to make a payment in accordance with its terms. The affidavit of plaintiff's recovery supervisor established that plaintiff's business records satisfied the admissibility requirements of CPLR 4518(a). In opposition, defendant failed to raise a triable issue of fact as to any bona fide defense, as his contentions were unsubstantiated and speculative.
Branch Banking & Trust Co. v. Myrthil, NY Slip Op 04784 (2d Dep't August 3, 2022)
The Appellate Division determined that Supreme Court properly dismissed plaintiff's legal malpractice cause of action in the original complaint because he failed to allege that "but for" defendant's negligent conduct, he would have prevailed in the underlying action. Plaintiff's citation to a ruling in the underlying action denying dismissal of his fraud claim, among others, did not, without more, show that he would have prevailed in the underlying action had defendant timely commenced it by naming the proper parties in the original complaint.
Markov v. Barrows, NY Slip Op 04780 (1st Dep't August 2, 2022)
The Appellate Division affirmed the denial of plaintiff's motion for summary judgment on its claim for unpaid premiums due. The motion was made before any discovery had been conducted and, therefore, was premature. In opposition, defendant pointed out that this was plaintiff's second motion and that no new evidence had been presented. It submitted an affidavit by its president, who averred, "Plaintiff possesses documents that will prove my defenses against their claim against me, and discovery is needed in order to obtain these documents." In addition, defendant raised an issue of fact as to the accuracy of the audit on which the premium was based by submitting an affidavit by a certified public accountant with personal knowledge of the audit who averred that he had communicated with plaintiff's auditor that the audit was incorrect and requested a second audit.
Burlington Ins. Co. v. 54th St. Auto Ctr., Inc., NY Slip Op 04779 (1st Dep't August 2, 2022)
Under the doctrine of res judicata, 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.
The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue that was clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of actions are the same. There are two requirements for its application: first, the identical issue necessarily must have been decided in the prior action and be decisive in the present action, and second, the party to be precluded must have had a full and fair opportunity to contest the prior determination. The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination.
Cullen v. Moschetta, NY Slip Op 04713 (2d Dep't July 27, 2022)
The filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss, pursuant to CPLR 3211(a)(8), for lack of personal jurisdiction.
Wilmington Trust Co. v. Valdivieso, NY Slip Op 04757 (2d Dep't July 27, 2022)
Resolution of discovery disputes and the nature and degree of any penalty to be imposed, pursuant to CPLR 3126, is within the sound discretion of the motion court. When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court's discretion to strike or dismiss a pleading. The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time
Here, the plaintiff's repeated failure to appear for a deposition, in violation of multiple Supreme Court orders, coupled with his failure to demonstrate a reasonable excuse for that failure, supports an inference that his conduct was willful and contumacious. It was a provident exercise of the court's discretion to grant the defendant's motion to strike the complaint.
Sheikh v. Poplardo, NY Slip Op 04753 (2d Dep't July 27, 2022)