Terminating a probationary teacher.

A probationary teacher may be terminated during the probationary period for any reason, or no reason at all, and without a hearing, unless the teacher establishes that employment was terminated for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith. The petitioner bears the burden of establishing, by competent evidence, bad faith or illegal reasons. Here, the evidence demonstrates that the petitioner received multiple letters to file, that she received an unsatisfactory observation rating, and that she lacked professionalism during her probationary employment. This evidence demonstrated that the respondent denied the petitioner tenure and discontinued her probationary employment in good faith.

Matter of Terelle v. New York City Dept. of Educ., NY Slip Op 03921 (2d Dep't July 26, 2023)

Here is the decision.

Appellate practice.

An order denying a motion to compel a witness to answer questions propounded at an examination before trial is similar to a ruling made in the course of the examination itself, and is not appealable as of right, even where it was made upon a full record and on the plaintiffs' motion to compel responses. Neither is an order granting a motion for a protective order precluding certain questioning of a witness at a deposition appealable as of right. Here, the plaintiffs sought leave to appeal after their appeal was perfected. Leave is denied.

Martino v. Jae Ho Lee, NY Slip Op 03915 (2d Dep't July 26, 2023)

Here is the decision.

Contract law.

A contract is interpreted in accordance with the intent of the parties, and the best evidence of their intent is what they express in their written agreement. Clear and unambiguous contractual terms must be enforced according to their plain meaning, and when the terms are clear and unambiguous, the court cannot look beyond the four corners of the contract. A contract is unambiguous if, on its face, it is reasonably susceptible of only one meaning.  

B.D. v. E.D., NY Slip Op 03971 (1st Dep't July 27, 2023)

Here is the decision.

A school's duty to supervise.

Schools are under a duty to supervise adequately the students in their charge, and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.  The duty of care is that of a reasonably prudent parent. Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not a proximate cause of the injury, and summary judgment in favor of a defendant charged with the duty of reasonable supervision is warranted.

K.L. v. City of New York, NY Slip Op 03914 (2d Dep't July 26, 2023)

Here is the decision.

Tort liability in favor of a non-party to the contract.

A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party. There are three exceptions to the general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. Here, the plaintiff did not allege facts in the complaint or verified bill of particulars that would establish the possible applicability of any of the three exceptions. In moving for summary judgment, the defendant is not required to demonstrate that these exceptions do not apply. The defendant's motion is granted.

Farmer v. Gazebo Contr., Inc., NY Slip Op 03849 (2d Dep't July 19, 2023)

Here is the decision.

Contract law.

A stipulation of settlement entered into by the parties in a divorce action, which is incorporated, but not merged into a judgment of divorce, constitutes a contract between the parties, subject to the principles of contract interpretation. 

Cervera v. Cervera, NY Slip Op 03846 (2d Dep't July 19, 2023)

Here is the decision.

CPLR 3215(c).

A defendant's active participation in the litigation may constitute a waiver of the right to seek dismissal. Here, the defendant did not move to dismiss the complaint until nearly three years after his attorney filed a notice of appearance.  In addition, the defendant never sought to vacate his default in answering the complaint, and, therefore, he was precluded from raising his proffered defenses of the plaintiff's failure to comply with RPAPL 1304. 

Bank of Am., N.A. v. Carapella, NY Slip Op 03844 (2d Dep't July 19, 2023)

Here is the decision.

Law of the case.

On plaintiff's summary judgment motion, the law of the case doctrine does not apply to a prior order in the action because that order was rendered on a motion to dismiss pursuant to CPLR 3211, which applies standards different from those on summary judgment. 

938 St. Nicholas Ave. Lender LLC v. 936-938 Cliffcrest Hous. Dev. Fund Corp., NY Slip Op 03885 (1st Dep't July 20, 2023)

Here is the decision.

Setting aside a verdict in the interest of justice.

A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise. Here, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to preclude the introduction of a certain photograph at trial on the basis that it was not timely disclosed. Precluding evidence that has been belatedly exchanged is appropriate where the offending party's violation was willful and contumacious, a finding that can be based upon the party's repeated failure to comply with discovery without a reasonable excuse. Plaintiff made no such showing.

Heller v. City of New York, NY Slip Op 03771 (2d Dep't July 12, 2023)

Here is the decision.

Lack of personal jurisdiction.

The defendant did not assert the lack of personal jurisdiction in the answer, and thereby waived this defense under CPLR 3211(e). However, the defense can be interposed in an answer that is amended by leave of court pursuant to CPLR 3025(b).

Deutsche Bank Natl. Trust Co. v. Groder, NY Slip Op 03768 (2d Dep't July 12, 2023)

Here is the decision.

Dismissal under CPLR 3216.

Where the court issues a written demand to resume prosecution of the case, the court must "set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation, " pursuant to CPLR 3216[b][3]. Where the court seeks sua sponte dismissal, it must give the parties notice and an opportunity to be heard, pursuant to CPLR 3216[a].

Designer Limousine, Inc. v. Authority Transp., Inc., NY Slip Op 03767 (2d Dep't July 12, 2023)

Here is the decision.