Trip-and-fall cases.

Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his fall without engaging in speculation.  A plaintiff's inability to identify the cause of his fall is fatal to a cause of action to recover damages for personal injuries because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

The plaintiff's inability to testify as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence. Cases grounded on circumstantial evidence require a showing of sufficient facts from which the defendant's negligence and the causation of the accident by that negligence can be reasonably inferred. However, where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused the accident, any determination by the trier of fact as to causation would be based upon sheer speculation.

Adzei v. Edward Bldrs., Inc., NY Slip Op 05580 (2d Dep't November 8, 2023)

Here is the deciion.

Discovery.

CPLR 3101(a) directs that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The right to disclosure, although broad, is not unlimited. The statute establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery; attorney's work product, also absolutely immune; and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship. A party asserting that material is privileged bears the burden of demonstrating that the material it seeks to withhold is immune from discovery. Whether a particular document is protected is necessarily a fact-specific determination, most often requiring in camera review.

Here, the Appellate Division remits the matter to the Supreme Court for an camera review of the documents requested in the subpoena before it determines whether to compel compliance with the subpoena or to grant a protective order.  

Bronstein v. Omega Constr. Group, Inc., NY Slip Op 05487 (2d Dep't November 1, 2023)

Here is the decision.

Vacating a default.

In order to vacate her default in opposing those branches of the defendants' separate motions which were pursuant to CPLR 3126 to strike the amended complaint, the plaintiff was required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition, pursuant to CPLR 5015[a][1]. While the plaintiff demonstrated a reasonable excuse for the default, she failed to demonstrate a potentially meritorious opposition. Instead, the willful and contumacious nature of the plaintiff's conduct can be inferred from her failure, over a period of years, to comply with the defendants' discovery demands and her failure to comply with court orders directing disclosure. Vacatur is denied.

S.A. v. Bucca, NY Slip Op 05485 (2d Dep't November 1, 2023)

Here is the decision.

Examinations before trial.

Courts have the inherent authority to strike the complaint and dismiss the action where the plaintiff refuses to answer questions posed at an examination before trial on grounds of the privilege against self-incrimination. On the appeal of a dismissal made pursuant to this inherent power, the only inquiry is whether the questions that the plaintiff refused to answer were material and necessary to the defendant's defense, pursuant to CPLR 3101.

Small v. DMRG Group LLC, NY Slip Op 05551 (1st Dep't November 2, 2023)

Here is the decision.

Piercing the corporate veil.

In order to survive a motion to dismiss the complaint, a plaintiff seeking to pierce the corporate veil must allege facts that, if proved, establish that the party against whom the doctrine is asserted exercised complete domination over the corporation with respect to the transaction at issue, and, through its domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff. The claim is brought in equity. Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate or LLC form include the failure to adhere to corporate or LLC formalities, inadequate capitalization, commingling of assets, and the personal use of corporate or LLC funds.

Archival, Inc. v. 177 Realty Corp., NY Slip Op 05386 (2d Dep't October 25, 2023)

Here is the decision.

Judiciary Law § 487.

Defendant is an attorney who represented plaintiff's former husband in the matrimonial action underlying this action. During the course of the matrimonial proceedings, defendant knowingly failed to inform the court that, in accordance with neglect and custody proceedings held in Kings County Family Court, plaintiff had been awarded primary physical custody of the child of the marriage. Defendant also prepared an affidavit for his client, falsely stating that the client had never been party to a neglect proceeding and asserting that the client was the child's custodial parent. In addition, defendant submitted a final judgment of divorce awarding primary physical custody of the child to his client on the basis of stipulated agreements between plaintiff and the client even though those agreements had been signed three years before the Kings County proceedings. Defendant then presented an order to show cause to hold plaintiff in contempt of court for not complying with the custody provisions in the judgment of divorce.

Plaintiff established her entitlement to summary judgment by submitting evidence that defendant had intentionally failed to apprise the court of the Kings County custody order, thus affirmatively misrepresenting the existence of adverse information relevant to the proceedings. This evidence was sufficient to establish "egregious conduct" under the statute. Despite defendant's position otherwise, a plaintiff need not demonstrate a chronic pattern of delinquency to recover on a Judiciary Law § 487 action; on the contrary, a single egregious act, such as the one presented here, is sufficient.

Suzuki v. Greenberg, NY Slip Op 05455 (1st Dep't October 26, 2023)

Here is the decision.

Appellate practice.

An argument that is not raised before Supreme Court is not preserved for appellate review.

35th St. Assoc. v. Sasson, NY Slip Op 05353 (1st Dep't October 24, 2023)

Here is the decision.

Court holiday.

Settlement agreements.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell at premises owned by the defendant. The defendant moved pursuant to CPLR 2104 to enforce a purported settlement agreement between the parties, contending that the parties had reached a settlement that was memorialized in an email message. The Supreme Court denied the defendant's motion, determining that "there was no meeting of the minds or the creation of a settlement that is legally enforceable." The defendant appealed.

Pursuant to CPLR 2104, a settlement agreement is binding upon a party if it is in a writing subscribed either by the party or by the party's attorney. In order to be enforceable, the agreement must set forth all material terms, and there must be clear mutual accord between the parties.  An email that merely confirms a purported settlement is not necessarily sufficient to bring the purported settlement into the scope of CPLR 2104.

Here, the email purportedly confirming the agreement stated that it was memorializing the "tentative resolution" of the case, and it was sent by counsel for the defendant, which is the party seeking to enforce the agreement. There is no confirming email subscribed by the plaintiff or the attorney for the plaintiff, who is the party to be charged.

The order is affirmed, with costs.

Vlastakis v. Mannix Family Mkt. @ Veteran's Rd., LLC, NY Slip Op 05287 (2d Dep't October 18, 2023)

Here is the decision.