Landlord-tenant law.

Where there is an ambiguity as to the meaning of a provision of a lease that was prepared by the landlord, the ambiguity will be resolved in favor of the tenant.

2330  Ocean Assoc., LLC v. Haroun, NY Slip Op 04643 (2d Dep't September 20, 2023)

Here is the decision.

Appellate practice.

The issues raised in connection with prior interlocutory orders are terminated with entry of the final judgment, but these issues may be reviewed as non-final orders that affect the final judgment, pursuant to CPLR 5501 [a] [1].

U.S. Bank, N.A. v. Kim, NY Slip Op 04706 (1st Dep't September 21, 2023)

Here is the decision.

An enforceable agreement to arbitrate.

Defendant established, prima facie, that there was an arbitration agreement by submitting evidence that plaintiff electronically signed defendant's updated terms of use, which included an arbitration provision, by clicking a checkbox and button that confirmed that she had reviewed and consented to the terms. Although plaintiff disputes whether she had inquiry notice of the terms, she did not affirmatively deny actual notice. In addition, defendant established inquiry notice, as a matter of law, by submitting the email and in-application pop-up screen that informed plaintiff that the changes to terms affected arbitration rights and included prominent hyperlinks to the terms in font commonly understood to signify hyperlinks. Plaintiff's arguments disputing the validity of the terms and raising unconscionability must be decided by the arbitrator, because the terms contain a delegation provision that plaintiff did not specifically challenge. 

Wu v. Uber Tech., Inc., NY Slip Op 04706 (1st Dep't September 21, 2023)

Here is the decision.

The doctrine of law of the case.

The doctrine applies only to legal determinations that were previously resolved on the merits.

47 E. 34th St. (NY) L.P. v. BridgeStreet World, NY Slip Op 04702 (1st Dep't September 21, 2023)

Here is the decision.

Alter ego liability.

On a veil piercing claim based on alter ego liability, the plaintiff must show that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that the domination was used to commit a fraud or wrong against the plaintiff which resulted in the plaintiff's injury. In the absence of any wrongdoing, the defendant is entitled to summary judgment dismissing the claim. 

47 E. 34th St. (NY) L.P. v. BridgeStreet World, NY Slip Op 04702 (1st Dep't September 21, 2023)

Here is the decision.

Summary judgment.

A denial of a summary judgment motion is not an adjudication on the merits. Therefore, a party is not relieved from proving its later entitlement to summary judgment merely because, in motion practice, it had previously made out a prima facie case.

47 E. 34th St. (NY) L.P. v. BridgeStreet World, NY Slip Op 04702 (1st Dep't September 21, 2023)

Here is the decision.

Successor liability.

Generally, a corporation which acquires the assets of another is not liable for its predecessor's torts. There are limited exceptions to this general rule, including the mere continuation theory at issue here, under which there may be liability where the purchasing corporation is merely a continuation of the selling corporation. A successor liability claim cannot stand where the surviving corporation did not acquire the assets of the selling corporation.

47 E. 34th St. (NY) L.P. v. BridgeStreet World, NY Slip Op 04702 (1st Dep't September 21, 2023)

Here is the decision.

Negligent foster care.

Counties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home. In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated.

Grabowski v. Orange County, NY Slip Op 04580 (2d Dep't September 13, 2023)

Here is the decision.

A landowner's duty of care.

A landowner has a duty to maintain its premises in a reasonably safe manner. However, there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. In order to succeed on a summary judgment motion, the defendant must establish that the condition in question was both open and obvious and, as a matter of law, was not inherently dangerous.

Here, in support of its motion, the defendant submitted evidence, including a transcript of the plaintiff's deposition testimony and photographs of the accident site, demonstrating, prima facie, that the condition of the elevated boardwalk was both open and obvious and not inherently dangerous. The plaintiff's testimony established that she was aware of the condition of the boardwalk, including that it was elevated, and that she had ridden her bicycle along the boardwalk, without incident, shortly befoee the accident.

Ferruzzi v. Village of Saltaire, NY Slip Op 04578 (2d Dep't September 13, 2023)

Here is the decision.

Discovery-related sanctions.

The Supreme Court has broad discretion in supervising disclosure and resolving discovery disputes. Pursuant to CPLR 3126, a court may impose sanctions where a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed. Although public policy strongly favors that actions be resolved on the merits, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct. The willful or contumacious character of a party's conduct can be inferred when, without a reasonable excuse, there is a repeated failure to respond to demands or to comply with the court's orders.

Ferjuste v. 437 BMW, LLC, NY Slip Op 04577 (2d Dep't September 13, 2023)

Here is the decision.

Restrictive covenants.

New York favors free and unencumbered use of real property, and covenants restricting a property's use are strictly construed against those seeking to enforce them.  A restrictive covenant may not be given an interpretation extending beyond the clear meaning of its terms. However, where proved by clear and convincing evidence, the covenant will be enforced pursuant to its clear meaning.

Ezekills Constr., LLC v. Saskas, NY Slip Op 04576 (2d Dep't September 13, 2023)

Here is the decision.