Indemnification.

In order to establish a claim for common-law indemnification, a party must prove that it was not negligent and that the proposed indemnitor was responsible for negligence that contributed to the accident. 

Balanta v. Guo Lin Wu, NY Slip Op 05111 (2d Dep't October 11, 2023)

Here is the decision.

Appellate practice.

The Appellate Division may consider a legal argument that was not raised before the trial court if it appears on the face of the record and could not have been avoided if it had been raised.

Wagman v. Morgan Stanley Children's Hosp. of N.Y. Presbyt., NY Slip Op 05214 (1st Dep't October 12, 2023)

Here is the decision.

Objecting to service of process.

The Appellate Division affirmed the Supreme Court's determination that the defendant waived any challenge to service because he actively participated in the litigation by formally appearing, addressing the merits of the petition, and raising objections about service upon another party before raising an issue about service upon himself. The Appellate Division noted that, as per an affirmation of service, relevant papers were served by email after the defendant, an attorney, consented to service by email.

Matter of Montal v. Koplen, NY Slip Op 05165 (2d Dep't October 11, 2023)

Here is the decision.

Vacating a default.

In order to vacate a default judgment, the movant must establish both a reasonable excuse for its default and a meritorious defense to the plaintiff's claims. A corporate defendant's failure to update the aaddress of its agent for service of process is not a reasonable excuse for defaulting. In the absence of a reasonable excuse, the issue of the defendant's defenses will not be addressed.

Shabtai v. HFZ Capital Group, LLC, NY Slip Op 05109 (1st Dep't October 10, 2023)

Here is the decision.

Appellate practice.

Respondent failed to oppose, or even address, the appeal of the denial of appellant's motion for an extension of time to move for summary judgment. Therefore, respondent concedes that point and the Appellate Division reverses that portion of the court's order, provided that appellant serves its motion for summary judgment within 60 days.

IO Experience Design LLC v. C & A Mktg. Inc., NY Slip Op 05038 (1st Dep't October 5, 2023)

Here is the decision.

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)

Here is the decision.

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.