The disqualification of an attorney is a matter that rests within the sound discretion of the trial court. Pursuant to Rule 3.7(a) of the Rules of Professional Conduct (22 NYCRR 1200.0), disqualification is warranted where it is likely that the attorney will be a witness on a significant issue of fact. Disqualification also is warranted in order to avoid the appearance of impropriety.
Alnoukari v. Nokari, NY Slip Op 03760 (2d Dep't July 12, 2023)
In order to state a cause of action to recover damages for legal malpractice, the plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages. In order to establish causation, the plaintiff must show that he would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence. 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.
The plaintiff commenced this action to recover damages arising from the defendants' prior legal representation in connection with a purchase agreement of the plaintiff's restaurant business. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground that the complaint failed to state a cause of action. The motion is granted because the plaintiff's allegation that the restaurant would have had increased profits but for the defendants' alleged malpractice is conclusory and speculative.
126 Main St., LLC v. Kriegsman, NY Slip Op 03758 (2d Dep't July 13, 2023)
The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter. It makes no difference that the defendants are not parties to the contracts governing the dispute, as a nonsignatory to a contract cannot be held liable where there is an express contract covering the same subject matter.
Iberdrola Energy Projects v. MUFG Union Bank, N.A., NY Slip Op 03841 (1st Dep't July 13, 2023)
A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. The plaintiff is not required to show the lack of comparative fault. However], the issue of a plaintiff's comparative negligence may be decided in the context of a plaintiff's motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of the defendant's affirmative defense alleging comparative negligence" (Ramirez v Wangdu, 195 AD3d 646, 646; see Sebagh v Capital Fitness, Inc., 202 AD3d 853; Poon v Nisanov, 162 AD3d at 808). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212[b]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324). On a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party (see Sage v Taylor, 195 AD3d 971; Gobin v Delgado, 142 AD3d 1134, 1135).
There can be more than one proximate cause of an accident (see Cox v Nunez, 23 AD3d 427), and the issue of comparative negligence is generally a question for the jury to decide (see Wiessner v Phillips, 201 AD3d 776, 777; Calderon v Cruzate, 175 AD3d 644, 648). However, "liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes" (Ely v Pierce, 302 AD2d 489, 489; see Federico v Defoe Corp., 138 AD3d 682, 684; Castillo v Amjack Leasing Corp., 84 AD3d 1298).
Here, the plaintiff established, prima facie, that she was not at fault in the happening of the subject accident (see 34 RCNY 4-08[f][1]; cf. Brito v RDJ Express Transp., 135 AD3d 651; Picke
Castillo v. Unique Roofing of N.Y., Inc., NY Slip Op 03675 (2d Dep't July 5, 2023)
A participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from participating in the sport. Inherent risks are those which are known, apparent, natural, or reasonably foreseeable consequences of participation. The doctrine encompasses risks involving conditions that are less than optimal. Here, the plaintiff assumed the risk of injury from stepping into a hole by voluntarily choosing to play basketball on an outdoor basketball court surface with faulty conditions which were open and obvious.
Balgley v. City of New York, NY Slip Op 03672 (2d Dep't July 5, 2023)
In this negligence action stemming from an auto-bicycle collision, the defendants failed to submit a copy of the defendant-driver's deposition transcript in support of their motion to dismiss. However, the moving papers included the attorney's affirmation stating that the defendants were submitting the transcript as an exhibit. In addition, the defendants cited to the deposition testimony, and based their arguments on the transcript. The defendants submitted a copy of the transcript with their reply papers in further support of the motion, and their attorney affirmed that the failure to submit the transcript with the original papers was a clerical error. Since the plaintiffs did not assert that they were prejudiced by the omission, and the defendants ultimately submitted the transcript, the court should have ignored the defendants' failure to submit the transcript in the original papers, pursuant to CPLR 2001.
A.B. v. Waring, NY Slip Op 03671 (2d Dep't July 5, 2023)
By failing to answer, a defaulting defendant is deemed to have admitted the factual allegations in the complaint.
State Farm Fire & Cas. Co. v. AA Acupuncture Serv., P.C., NY Slip Op 03562 (1st Dep't June 29, 2023)
Under 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. Here, a foreclosure action was dismissed for lack of standing, and a subsequent action was dismissed on the ground that the plaintiff was bound by the earlier dismissal order. Because neither action reached the merits of the foreclosure claim, this action is not barred.
Bank of N.Y. Mellon v. Treitel, NY Slip Op 03446 (2d Dep't June 18 2023)
Because there can be more than one proximate cause of an accident, a defendant moving for summary judgment in a negligence action must establish, prima facie, that he is free from fault.
Greene v. Peets, NY Slip Op 03454 (2d Dep't June 28 2023)
There is no appeal as of right from an order that does not decide a motion on notice, pursuant to CPLR 5701 [a] [2]. However, in the interest of judicial economy, the Appellate Division may exercise its discretion and deem the notice of appeal to be a motion for leave to appeal, and grant that motion, pursuant to CPLR 5701[c].
Trafalet v. Trafalet, NY Slip Op 03563 (1st Dep't June 29, 2023)
Plaintiff commenced this action by summary judgment in lieu of complaint for unpaid rent of a retail store that was personally guaranteed by defendant. In opposition, defendant raised an issue of fact as to the amount of rent due and owing by submitting the affidavit of the store's manager, who averred that the only outstanding rent owed was the rent due for the period when the store was forced to close as a result of the Covid-19 pandemic. Plaintiff is not entitled to the expedited relief afforded by CPLR 3213.
3350 BW 136 Inc. v. Perez, NY Slip Op 03538 (1st Dep't June 29, 2023)