Discovery motions.

Pursuant to 22 NYCRR 202.7, motions relating to disclosure or to a bill of particulars must include an affirmation that counsel has conferred with opposing counsel in a good-faith effort to resolve the issues. The affirmation must specify the time, place, and nature of the conferral, as well as the issues discussed and their resolution. If there was no conferral, the affirmation must state why. Failure to submit the affirmation warrants denial of the motion.

Behar v. Wiblishauser, NY Slip Op 04357 (2d Dep't August 23, 2023)

Here is the decision.

A claim against a municipality.

A plaintiff seeking to recover in tort against a municipality must serve a notice of claim to enable authorities to investigate, collect evidence and evaluate the merits of the claim. The notice of claim must set forth the nature of the claim, and the time, place, and manner in which the claim arose. Where, as here, the municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies. There are two exceptions to the prior written notice requirement: where an affirmative act of negligence by the municipality creates the defect; or where a special use of the property confers a special benefit upon the municipality.

Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint by providing an affidavit of its Deputy Commissioner of Public Works indicating that he had conducted a records search and found no prior written notice of the ice condition alleged by the plaintiff.  In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact.

Banschick v. City of Long Beach, NY Slip Op 04356 (2d Dep't August 23, 2023)

Here is the decision.

Slips-and-falls.

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the allegedly hazardous condition that caused the accident, or that it did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. In order to meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the accident. Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice. 

Armenta v. AAC Cross County Mall, LLC, NY Slip Op 04355 (2d Dep't August 23, 2023)

Here is the decision.

A claim to quiet title.

In order to maintain a cause of action to quiet title to real property, the plaintiff must allege actual or constructive possession of the property and the existence of a removable cloud on the property, which is an apparent title to the property, such as in a deed or other instrument, that is actually invalid or inoperative.

41 Riv. Rd., LLC v. Bank of Am., N.A., NY Slip Op 04354 (2d Dep't August 23, 2023)

Here is the decision.

The admissibility of business records.

A witness may read into the record from the contents of a document that has been admitted into evidence, but, if the document has not been admitted into evidence, the witness's description of the document is inadmissible hearsay. It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.

Christiana Trust v. Corbin, NY Slip Op 04298 (2d Dep't August 16, 2023)

Here is the decision.

Summary judgment.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. The failure to make this showing requires denial of the motion, regardless of the sufficiency of the opposing papers. A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case.

Bourne v. Martin Dev. & Mgt., LLC, NY Slip Op 04297 (2d Dep't August 16, 2023)

Here is the decision.

Untimely pleadings.

In order to compel a party to accept an untimely pleading, the movant must demonstrate both a reasonable excuse for its delay and a potentially meritorious defense to the claims to which it is responding  The lack of an explanation for the delay warrants denial of the motion.

Bank of N.Y. Mellon v. Norton, NY Slip Op 04295 (2d Dep't August 16, 2023)

Here is the decision.

Pleading equity in the alternative.

Because plaintiffs allege that the brokerage agreement is void and unenforceable, they may assert a claim for unjust enrichment in the alternative to recover the brokerage commission that they had paid defendant.

SL 4000 Conn. LLC v. CBRE, Inc., NY Slip 04350 (1st Dep't August 17 2023) 

Here is the decision.

Service of process.

At a hearing to determine the validity of service of process, the burden of proving personal jurisdiction is upon the party asserting it, and that party must sustain that burden by a preponderance of the credible evidence. Where a process server has no independent recollection of events, the process server's logbook may be admitted in evidence as a business record. Mailing may be proved by any number of documents meeting the requirements of the business records exception to the hearsay rule under CPLR 4518. 

Bank of N.Y. Mellon v. Chaudhury, NY Slip Op 04294 (2d Dep't August 16, 2023)

Here is the decision.

Contract law.

When the language of a contract is ambiguous, its construction presents a question of fact that may not be resolved by the court on a motion for summary judgment.  A contract is ambiguous if its terms are susceptible to more than one reasonable interpretation.

Hong v. Renval Constr., LLC, NY Slip Op 04196 (2d Dep't August 9 2023)

Here is the decision.

Motions to dismiss.

A motion to dismiss 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, thus conclusively establishing a defense as a matter of law. On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. 

Gold v. 22 St. Felix, LLC, NY Slip Op 04194 (2d Dep't August 9, 2023)

Here is the decision.