A motion to discharge a mechanic's lien.

The defendant's failure to file proof of service of the notice of the lien within 35 days of filing it, as required by Lien Law § 11, automatically terminated the notice as a lien. The plaintiff's motion is granted.

Christopulos v. Christopulos, NY Slip Op 05018 (2d Dep't August 24, 202)

Here is the decision.

Appellate practice.

The appeal from so much of the order as directed a hearing is dismissed. There is no appeal as of right from an order which merely directs a hearing to aid in the disposition of a motion, as it does not decide the motion, and does not affect a substantial right, pursuant to CPLR 5701[a][2][v]. Leave to appeal has not been granted.

Christopulos v. Christopulos, NY Slip Op 05017 (2d Dep't August 24, 2022)

Here is the decision.

Claims for negligent hiring, retention, and supervision.

There is no statutory requirement that a plaintiff plead these causes of action with particularity.

Boyle v. North Salem Cent. Sch. Dist., NY Slip Op 05014 (2d Dep't August 24, 2022)

Here is the decision.

The emergency doctrine.

Pursuant to the doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or otherwise causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. Ordinarily, whether there was an emergency and the reasonableness of a party's response present questions of fact. However, summary judgment may be granted when a party submits sufficient evidence.

Here, the defendants submitted transcripts of the plaintiff's and the defendant-bus driver's deposition testimony. They offered different accounts of the accident, raising a triable issue of fact as to how the accident occurred and which party was at fault. However, the defendants also submitted a bus surveillance video demonstrating that the plaintiff was operating his vehicle in the left turn lane, next to the bus, and then, without warning and despite adequate space in front of the bus, changed lanes directly in front of the bus, in a manner that did not give the bus driver adequate time to avoid the accident. The video established, prima facie, that the defendant was confronted with an emergency not of his own making, leaving him only seconds to react and virtually no opportunity to avoid the collision. Summary judgment is granted, and the complaint is dismissed. 

Anderson v. Metropolitan Transp. Auth., NY Slip Op 05013 (2d Dep't August 24, 2022)

Here is the decision.

The doctrine of collateral estoppel.

Collateral estoppel is a narrower species of res judicata. It precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, regardless of whether the forum or causes of action are the same. In order to invoke the doctrine, the issue must have been material to the first action or proceeding, and essential to the decision that was rendered. 

71-21 Loubet, LLC v. Bank of Am., N.A., NY Slip Op 05012 (2d Dep't August 24, 2022)

Here is the decision.

A claim of legal malpractice.

In order to state a cause of action to recover damages for legal malpractice, the plaintiff must allege that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. In order to establish causation, the plaintiff must plead specific factual allegations demonstrating that, but for the attorney's negligence, the underlying action would have had a more favorable outcome than resulted Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative.

Jean-Paul v. Rosenblatt, NY Slip Op 04958 (2d Dep't August 17, 2022)

Here is the decision.

Appellate practice.

In this action on a promissory note, plaintiffs moved by notice of motion for summary judgment and defendants cross-moved for summary judgment dismissing the complaint for lack of standing. The motion court, by interim order, directed the parties to appear before a court attorney referee to determine if plaintiff had possession of the note when the action was commenced. After a hearing, the referee determined that plaintiffs were in possession of the note. Defendants appeal the referee's determination.

Although captioned "Decision and Order," the referee's decision is not an order determining a motion made on notice, pursuant to CPLR 5701[a][2]. The appeal is dismissed, without prejudice to defendants' taking of an appeal from the ultimate disposition of the summary judgment motions.

Ocwen Loan Servicing, LLC v. Pacheco, NY Slip Op 05009 (1st Dep't August 23, 2022)

Here is the decision.

Notices of claim.

Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against a municipal entity, pursuant to General Municipal Law § 50-e. A petition for leave to serve a late notice of claim upon a public authority may not be made more than one year and 90 days after the event upon which the claim is based, unless the statute of limitations has been tolled. Here, the petitioner timely commenced this proceeding on November 12, 2019, by filing the order to show cause, the affirmation of counsel, and the verified proposed notice of claim. Because the appellants do not claim that a substantial right would be prejudiced, the affirmation and proposed notice of claim are properly viewed as the petition required to commence a special proceeding, pursuant to CPLR 3026. In addition, the statute of limitations was tolled from the time the proceeding was commenced until the date of the order deciding the petition. Therefore, the petition is timely. 

Matter of Cerreta v. County of Suffolk, NY Slip Op 04964 (2d Dep't August 17, 2022)

Here is the decision.

Severability.

Where a contractual provision is unenforceable and there is no severability clause, the entire agreement is unenforceable.

Mercado v. Schwartz, NY Slip Op 04956 (2d Dep't August 17, 2022)

Here is the decision.

An untimely filing of proof of service.

The defendant third-party plaintiff served the third-party defendants pursuant to CPLR 308(2) by delivering the third-party summons and complaint to a person of suitable age and discretion at the address of the third-party defendants' usual place of abode on February 11, 2019, and by mailing copies to the same address the next day. The proofs of service were filed on April 2, 2019, past the 20-day filing period required by CPLR 308(2). The defendant third-party plaintiff moved for leave to enter a default judgment against the third-party defendants, and the third-party defendants opposed the motion on the ground that they had already served a third-party answer. 

While the failure to file a timely proof of service is a curable procedural irregularity, here, the defendant third-party plaintiff did not obtain an order permitting a late filing of proof of service. Accordingly, the late filings were nullities and the third-party defendants' time to answer never began to run. Since the third-party defendants were not in default, the defendant third-party plaintiff's motion for leave to enter a default judgment against the third-party defendants is denied.

K.J. v. Longo, NY Slip Op 04957 (2d Dep't August 17, 2022)

Here is the decision.

Service of process.

Ordinarily, a process server's affidavit establishes a prima facie case as to the method of service. and, therefore, gives rise to a presumption of proper service. Here, the affidavit of service demonstrates, prima facie, that the defendant was served with the summons and complaint pursuant to CPLR 308(4) by affixing a copy of the summons and complaint to the door of his actual dwelling place, and by mailing a copy of the summons and complaint to his last known residence. The defendant argues that he never resided at the address set forth in the affidavit of service. However, the record establishes that the defendant engaged in affirmative conduct which misled the plaintiff into serving process at an incorrect address. Therefore, the defendant is estopped from contending that the address set forth in the affidavit of service is not his dwelling place, pursuant to CPLR 308[2].

Hudson Val. Bank, N.A. v. Eagle Trading, NY Slip Op 04956 (2d Dep't August 17, 2022)

Here is the decision.