Failure to appear at a court conference.

In order to vacate a default in appearing at a scheduled court conference, the plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action. The determination of whether an excuse is reasonable is within the sound discretion of the Supreme Court. In its exercise of discretion, the court may consider factors such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits. A court may accept law office failure as a reasonable excuse, but the party seeking to vacate the default must provide detailed allegations of fact that explain the failure. A pattern of willful default and neglect will not be excused. 

Gutierrez v. Plonski, NY Slip Op 04366 (2d Dep't August 23, 2023)

Here is the decision.

Indemnification.

Under the general rule, attorney's fees are incidents of litigation, and a prevailing party may not collect fees unless an award is authorized by an agreement between the parties, a statute, or a court rule. A contract may include a promise by one party to hold the other harmless for a particular loss or damage, and counsel fees are a form of damage which may be indemnified in this way. A contract assuming that obligation must be strictly construed in order to avoid reading into it a duty which the parties did not intend. The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances. 

Giannakopoulos v. Figame Realty Mgt., NY Slip Op 04364 (2d Dep't August 23, 2023)

Here is the decision.

Applicability of the emergency doctrine.

The court granted that branch of the plaintiff's motion which was to strike the tenth affirmative defense, asserting the emergency doctrine, as the defendants were not faced with a sudden and unexpected circumstance.

Depass v. Mercer Sq., LLC, NY Slip Op 04363 (2d Dep't August 23, 2023)

Here is the decision.

Motions to intervene.

A court, in its discretion, may grant the motion when the proposed intervenor's claim or defense and the main action have a common question of law or fact, pursuant to CPLR 1013. Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance since, whatever the basis, a timely motion for leave to intervene should be granted where the intervenor has a real and substantial interest in the outcome of the proceedings. In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party.

Dekalb Assets 2015, LLC v. Roman, NY Slip Op 04362 (2d Dep't August 23, 2023)

Here is the decision.

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.