Contract law.

Unlike a negligence cause of action, nominal damages are available for breach of contract. Because actual damages are not an essential element of a breach of contract cause of action, the fact that the plaintiff is precluded from establishing actual damages in this action is not decisive on the breach of contract claim.

Giamundo v. Dunn, NY Slip Op 04422 (2d Dep't August 30, 2023)

Here is the decision.

Collateral estoppel.

The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action an issue that was clearly raised in a prior action and decided against that party or those in privity with it. In order to give the prior determination conclusive effect, two conditions must be met: first, there must be an identity of the issue which was necessarily decided in the prior action and is decisive of the present action, and, second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination. The party attempting to defeat the application of collateral estoppel has the burden to establish that it did not have a full and fair opportunity to litigate the issue.

Giamundo v. Dunn, NY Slip Op 04422 (2d Dep't August 20, 2023)

Here is the decision.

CPLR 4317 (b).

An order of reference to determine damages is appropriate where the determination will require examination of a long account and primarily presents an issue of appropriate computation.

Screen Media Ventures, LLC v. Capella Intl., Inc., NY Slip Op 04479 (1st Dep't August 31, 2023)

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Long-arm jurisdiction.

The invocation of New York's long-arm jurisdiction pursuant to CPLR 302(a)(2) requires the defendant's physical presence in New York at the time of the tort. The mere fact that the injury occurred in New York is insufficient.

SOS Capital v. Recycling Paper Partners of PA, LLC, NY Slip Op 04480 (1st Dep't August 31, 2023)

Here is the decision.

Motions to reargue.

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion," pursuant to CPLR 2221[d][2]. Motions for reargument are addressed to the sound discretion of the court which decided the prior motion. The motion does not provide an unsuccessful party with successive opportunities to reargue issues that were previously decided or to present arguments that are different from those that were originally presented.

Hallett v. City of New York, NY Slip Op 04367 (2d Dep't August 23, 2023)

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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)

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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.