Discovery.

CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." However, a party is not entitled to unlimited, uncontrolled, and unfettered disclosure. Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order striking a notice for discovery and inspection that is palpably improper. The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court.

Here, the Appellate Division determined that the Supreme Court providently exercised its discretion in directing the defendant to produce repair-related records for the stairway on which accident occurred and a list of all employees and contractors that worked on the stairway for two years before the accident. The plaintiffs demonstrated that those documents were material and necessary to the prosecution of the action, and the defendant failed to demonstrate that a protective order was warranted with respect to those documents.

However, the Supreme Court erred in directing the defendant to disclose records for one year after the accident. Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case. There is an exception to this rule if the defendant's maintenance of, or control over, the accident's instrumentality is at issue. Here, there is no issue as to the maintenance and control of the stairway.

C.B. v. New York City Tr. Auth., NY Slip Op 04650 (2d Dep't September 20, 2023)

Here is the decision.

A claim for tortious interference with contract.

In order to plead the cause of action, a plaintiff must allege (1) the existence of a valid contract; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procuring of the breach of the contract; and (4) damages. The complaint will be dismissed where the plaintiff fails to sufficiently allege that, but for the defendant's conduct, the contract would not have been breached. 

111 W. 57th Inv. LLC v. 111 W57 Mezz Inv. LLC, NY Slip Op 05029 (1st Dep't October 5, 2023)

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The duty of loyalty.

The duty of loyalty is grounded in the faithless servant doctrine. The duty is breached where the employee, acting as the employer's agent, unfairly competes with his employer and diverts business opportunities to himself or others to the employer's financial detriment. Here, defendant does not dispute that he referred a matter to another law firm without plaintiff's knowledge or consent and collected more than $140,000 in referral fees. A for-profit referral, without plaintiff's knowledge or consent, violates defendant's duty of loyalty and, at a minimum, entitles plaintiff to the referral fee.

Barasch & McGarry, PC v. Marcowitz, NY Slip Op 04815 (1st Dep't September 28, 2023)

Here is the decision.

Notices of claim.

Plaintiffs seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim, pursuant to General Municipal Law § 50-e. The notice must set forth the nature of the claim and the time when, the place where, and the manner in which the claim arose. The test of the sufficiency of the notice is whether it includes information sufficient to enable the public entity to pinpoint the place, fix the time, and understand the nature of the accident at issue. Claims of roadway, sidewalk, or similar defects must be set forth with great specificity because of their transitory nature. A court deciding a motion to dismiss a complaint on the ground that the notice is insufficient may consider the testimony provided during an examination pursuant to General Municipal Law § 50-h, as well as any other evidence properly before the court.

A.A. v. City of New York, NY Slip Op 04744 (2d Dep't September 27, 2023)

Here is the decision.

Motions for summary judgment in lieu of complaint.

Plaintiff demonstrated its entitlement to relief under CPLR 3213 when it established the existence of the guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty. There is no need to consider the underlying transactions that resulted in the promissory note because the note states that it supersedes all prior agreements between the parties and expressly references defendant's unconditional guaranty, executed the same day, which waived all defenses, including those raised here.

Varadero Master Fund, L.P. v. Gomez, NY Slip Op 04742 (1st Dep't September 26, 2023)

Here is the decision.

Foreclosure after bankruptcy.

The Supreme Court ordered a referee to conduct a foreclosure sale of certain real property owned by the defendant. One week before the foreclosure sale, the defendant filed a bankruptcy petition. The Bankruptcy Court granted the defendant a discharge, issued a final decree that the defendant's estate had been fully administered, and closed the bankruptcy case.

The plaintiff moved for an extension of time to conduct the foreclosure sale. Pursuant to CPLR 3211(a)(5), the defendant moved  to dismiss the complaint on the ground of discharge in bankruptcy.  After the Supreme Court granted the plaintiff's motion and denied the defendant's motion, the defendant appealed.

The Appellate Division determined that the defendant's motion to dismiss was properly denied. A party may move to dismiss on the ground that the cause of action may not be maintained because of a discharge in bankruptcy.  However, the defendant waived this defense by failing to timely raise it, pursuant to 3211[e]. The Appellate Division noted that, in any event, a creditor's right to foreclose on a mortgage survives bankruptcy.

Board of Directors of Colonial Sq. Homeowners' Assn., Ltd. v. Signorile, NY Slip Op 04653 (2d Dep't September 20, 2023)

Here is the decision.

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)

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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)

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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.