Summary judgment in a premises liability action.

The defendant-movant has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of it. The defendant also may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his injury without engaging in speculation.

Bayer v. Savan Hospitality Corp., NY Slip Op 02096 (2d Dep't April 26, 2023)

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Attorney-client privilege.

The fact that a privileged communication may contain information that is relevant to the issues being litigated does not, in and of itself, put the contents of the communication at issue, so as to constitute a waiver of the privilege.

Talos Capital Designated Activity Co. v. 257 Church Holdings LLC, NY Slip Op 02196 (1st Dep't April 27, 2023)

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Successive motions.

Successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause. In order to be deemed newly discovered, the evidence that was not submitted in support of the previous motion must be used to establish facts that were not available to the movant at the time of the original submission and which could not have been established through alternative evidentiary means.

313 43rd St. Realty, LLC v. TMS Enters., LP, NY Slip Op 02094 (2d Dep't April 26, 2023)

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Time-bar in a mortgage foreclosure action.

Plaintiff's predecessor failed to mail defendant a notice of default in accordance with the terms of the mortgage agreement, a condition precedent to accelerating the debt. Because that purported acceleration was a nullity, the statute of limitations never accrued and, therefore, the present foreclosure action, commenced after the proper mailing of a default notice, was timely. Given the timeliness of the foreclosure action, defendant's action to quiet title cannot be maintained.

1900 Capital Trust III v Guaman, NY Slip Op 02075 (1st Dep't April 25, 2023)

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Service of process.

The court does not have personal jurisdiction over a defendant when the plaintiff fails to properly serve process, and any subsequent proceedings are null and void. A process server's affidavit of service establishes a prima facie case as to the method of service, and gives rise to a presumption of proper service.  In order to vacate a default judgment under CPLR 5015(a)(4), the defendant must overcome the presumption raised by the process server's affidavit. Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing.

Here, the defendant offered no specific facts or documentary or other evidence demonstrating that he did not reside at the address where service was effected. Therefore, his affidavit was insufficient to rebut the presumption of proper service established by the affidavit of service. 

Deutsche Natl. Bank Trust Co. v. Williams, NY Slip Op 01982 (2d Dep't April 19, 2023)

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Dismissal on the ground of documentary evidence.

A motion to dismiss the complaint on the ground that the action is barred by documentary evidence, pursuant to CPLR 3211(a)(1), may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing, as matter of law, a defense to the action.

Buchanan v. Law Offs. of Sheldon E. Green, P.C., NY Slip Op 01979 (2d Dep't April 19, 2023)

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Waiver of arbitration.

Defendant waived its contractual right to arbitrate the dispute by participating in the litigation over an 18-month period, during which defendant requested an extension of time to answer the complaint, filed an answer, appeared at a preliminary conference, and agreed to a discovery schedule.

Hoffman v. AKT in Motion, Inc., NY Slip Op 02062 (1st Dep't April 20, 2023)

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Failure to state a cause of action.

On a motion to dismiss a complaint for failure to state a cause of action, pursuant to CPLR 3211(a)(7),  the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The test of the sufficiency of the complaint is whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments. Whether the plaintiff can ultimately establish its allegations is not a part of the calculus, and any deficiencies in the complaint may be amplified by supplemental pleadings and other evidence.

Cabrera v. Rallye Motors, LLC, NY Slip Op 01885 (2d Dep't April 12, 2023)

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Res judicata.

Pursuant to 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.  The doctrine may be applied even if the litigation is based upon different theories or if seeking a different remedy than in the prior proceeding.

Brody v. RBC Mtge. Co., NY Slip Op 01883 (2d Dep't April 12, 2023)

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Summary judgment on a sexual harassment claim under the City's Human Rights Law.

The statute does not differentiate between sexual harassment and other forms of gender discrimination, but, instead, considers sexual harassment as one species of sex- or gender-based discrimination.  Therefore, the court cannot grant the defendant's motion on the gender discrimination claim while denying the motion with respect to the hostile work environment and sexual harassment claim. Plaintiff can make out a prima facie case in the absence of an adverse employment action. In deciding the motion, defendant bore the burden of showing that, based on the record evidence and drawing all reasonable inferences in plaintiff's favor, no jury could find defendant liable for gender-based discrimination. Plaintiff submits sufficient evidence to support her assertions that, after she rejected her supervisor's sexual advances, she was unjustifiably criticized for her work product and attendance by her supervisors and was stripped of her assignments, which permits a finding that she was treated less well based on her gender. 

Bond v. New York City Health & Hosps. Corp., NY Slip Op 01939 (1st Dep't April 13, 2023)

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Excusable defaults.

Pursuant to CPLR 5015(a)(1), a court may relieve a party from a judgment or order on the ground of excusable default, if a motion for that relief is made within one year after service of a copy of the judgment or order with written notice of entry. Even after expiration of the one-year limitations period set forth in the statute, a court may vacate its own judgment for sufficient reason and in the interests of substantial justice.

Here, the motion to vacate the default was untimely since it was not made within one year after service of a copy of the order with written notice of entry.  There was no basis for an extension of the one-year period in the exercise of discretion, since the defendant failed to demonstrate a reasonable excuse for his lengthy delay in moving to vacate the default.

Bank of N.Y. Mellon v. Geffrard, NY Slip Op 01882 (2d Dep't April 12, 2023_

Here is the decision.