A negligence claim against a municipality.

When a negligence claim is asserted against a municipality, the first issue for the court to decide is whether, when the claim arose, the municipal entity was engaged in a proprietary function or acting in a governmental capacity. A government entity performs a purely proprietary role when its activities substitute for or supplement traditionally private enterprises. When a municipality is engaged in a proprietary function, it is subject to suit, if at all, under the ordinary rules of negligence. However, if the municipality is engaged in a governmental function and acting for the protection and safety of the public pursuant to its police powers, the plaintiff must prove the existence of a special duty as an element of the negligence cause of action. 

Canberg v. County of Nassau, NY Slip Op 01658 (2d Dep't March 29 2023)

Here is the decision.

Vacatur and jurisdiction.

When a party seeking to vacate an order entered upon default seeks both a discretionary vacatur pursuant to CPLR 5015(a)(1) and raises a jurisdictional objection under CPLR 5015(a)(4), the jurisdictional question must be resolved before determining the question of vacatur.

Blue Lagoon, LLC v. Reisman, NY Slip Op 01657 (2d Dep't March 29, 2023)

Here is the decision.

A motion for an extension of time.

The determination of whether to grant a request for an extension of time pursuant to CPLR 2004 is addressed to the sound discretion of the trial court. In exercising its discretion, the court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the party opposing the motion. 

Bank of Am., N.A. v. Cord, NY Slip Op 01655 (2d Dep't March 29, 2023)

Here is the decision.

Statutory remedies.

Where a statute creates a right and prescribes a remedy for its violation, that remedy is exclusive, and neither an action for damages nor for an injunction can be maintained. Civil Rights Law § 41 prescribes a monetary remedy for violations of Civil Rights Law § 40-b, and so plaintiffs are limited to that remedy. The motion court cannot issue a preliminary injunction.

Hutcher v. Madison Sq. Garden Entertainment Corp., NY Slip Op 01646 (1st Dep't March 28, 2023)

Here is the decision.

Amending the bill of particulars.

 The court may properly exercise its discretion in permitting a plaintiff to amend the bill of particulars before the filing of the note of issue where there is no prejudice or surprise to defendant and the amendment is not palpably insufficient or devoid of merit. 

Miah v. Pipe Dreams Realty V Corp., NY Slip Op 01649 (1st Dep't March 28, 2023)

Here is the decision.

Vigil.

Stabat Mater.

"Quid est veritas?"

Spy Wednesday.

Reformation of a contract.

There is a presumption that the contract's language embodies the parties' true intent, but when a party shows by clear and convincing evidence that the writing memorialized in an agreement is at variance with the parties' intent, reformation will be granted.

Empery Asset Master, Ltd. v. AIT Therapeutics, Inc., NY Slip Op 01585 (1st Dep't March 23, 2023)

Here is the decision.