Motions to extend time.

Under CPLR 2004, "the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." In exercising its discretion to grant an extension, the court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the opponent of the motion.

Bank of N.Y. Mellon v. Ramsamooj, NY Slip Op 04652 (2d Dep't September 20, 2023)

Here is the decision.

Spoliation.

Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126. A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense. In the absence of pending litigation or notice of a specific claim, a defendant will not be sanctioned for discarding items in good faith and pursuant to its normal business practices. 

In this personal injury action, the plaintiff's cross-motion to strike the defendant's answer is denied. The plaintiff did not establish that the defendant was on notice that the evidence might be needed for future litigation at the time the surveillance footage was overwritten. The plaintiff did not notify the defendant of her claim or request that it preserve any surveillance footage until three months after the incident, by which time the surveillance footage had been automatically overwritten according to the defendant's normal business practices.

The defendant's preservation of only a portion of the surveillance footage does not indicate a culpable state of mind, as the defendant's representative, an assistant principal, averred in an affidavit that he saved the 51-second clip of the incident at issue consistent with ordinary business practices. The affidavit was sufficient to provide the court with a basis to find that the search for the surveillance footage had been thorough and that it had been conducted in a good-faith effort to give the footage to the plaintiff. Similarly, there is no evidence to indicate that the defendant was negligent in failing to preserve the additional surveillance footage. Moreover, the plaintiff did not demonstrate that the defendant's failure to preserve all of the surveillance footage fatally compromised her ability to prove her claim.

M.B. v. St. Francis Preparatory Sch., NY Slip Op 04651 (2d Dep't September 20 2023)

Here is the decision.

Court holiday.

Allegations of negligence.

Absent a statute or public policy to the contrary, a contractual provision absolving a party from its own negligence will be enforced. Here, the defendant established its prima facie entitlement to dismissal as a matter of law by submitting the service agreement showing that maintenance of pipes was not covered, and that it was not responsible for frozen pipes or any property damage resulting therefrom.

Allstate Ins. Co. v. Parkside Fuel, Inc., NY Slip Op 04649 (2d Dep't September 20, 2023)

Here is the decision.

Accounts stated.

An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due. The agreement may be express or implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account. In order to establish a prima facie case to recover on an account stated, the plaintiff must establish that it submitted invoices and that the defendant received and retained the invoices without objection for an unreasonable period of time.

Alliance Natl. Ins. Co. v. Hagler, NY Slip Op 04648 (2d Dep't September 20, 2023)

Here is the decision.

Real estate brokers' commissions.

In order to prevail on a cause of action to recover a commission, the broker must establish: (1) that it is duly licensed; (2) that it had a contract, express or implied, with the party to be charged with paying the commission; and (3) that it was the procuring cause of the sale. Where the broker is not involved in the negotiations leading up to the completion of the deal, the broker must establish that it created an amicable atmosphere in which negotiations proceeded, or that it generated a chain of circumstances that proximately led to the sale.

All Is. Estates Realty Corp. v. Singh, NY Slip Op 04647 (2d Dep't September 20, 2023)

Here is the decision.

Dismissal based on documentary evidence.

Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

344 Rockaway Parkway Inv. Group, LLC v. Estate of Nedia Colon, NY Slip Op 04644 (2d Dep't September 20, 2023)

Here is the decision.

Arbitration.

Arbitration is a matter of contract, grounded in the agreement of the parties. On a motion to compel or stay arbitration, the court first must determine whether the parties have agreed to submit their disputes to arbitration, and, if so, whether this particular dispute falls within the scope of their arbitration agreement.

All Is. Estates Realty Corp. v. Singh, NY Slip Op 04646 (2d Dep't September 20, 2023)

Here is the decision.

A default in a personal injury action.

By defaulting, the defendant admitted all traversable allegations in the complaint, including the basic allegation of liability.  Therefore, the only issue to be determined at the inquest is the extent of the damages sustained by the plaintiff, and the court may not consider any issues of liability.

Abad v. Francis Lewis, LLC, NY Slip Op 04645 (2d Dep't September 20 2023)

Here is the decision.

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.