Contract law.

A stipulation of settlement that is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation.  In interpreting a stipulation of settlement, the court should arrive at a construction that will give fair meaning to all of the language employed by the parties in order to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.  A court may not rewrite an agreement by adding or excising terms under the guise of construction, and it may not construe the language in such a way as would distort the contract's apparent meaning. Neither can a court cannot reform an agreement so as to conform to what it thinks is proper, if the parties have not assented to such a reformation.

Anderson v. Anderson, NY Slip Op 06108 (2d Dep't November 29, 2023)

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1941.

Contract law.

The basic principles of contract interpretation apply to by-laws and offering plans. The relevant provisions of related documents must be read together, and where the language of the instrument at issue is unambiguous, it will be upheld and enforced according to the plain meaning of its terms.

Mazumdar v. Board of Mgrs. of Striver Gardens Condominium, NY Slip Op 05988 (1st Dep't November 21, 2023)

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Premises liability.

In a premises liability case, the defendant-property owner, or a party in possession or control of the property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of it. A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected. In order to meet its initial burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the accident site was last cleaned or inspected prior to the accident.

Cosme v. New York City Dept. of Educ., NY Slip Op 06026 (2d Dep't November 22, 2023)

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Common-law indemnification.

The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party. Evidence of a party's authority to supervise or direct work, without more, is insufficient to impose liability upon that party under a theory of common-law indemnification.

Chapa v. Bayles Props., Inc., NY Slip Op 06025 (2d Dep't November 22, 2023)

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Appellate practice.

Defendants' arguments as to why a mistrial should have been declared as to the jury's liability and compensatory damages determinations are not properly before the Appellate Division. In their motion papers before Supreme Court, defendants expressly limited their motion to events and issues that arose after the first phase of the trial had concluded. However, defendants' brief on appeal focus on matters that either arose during the trial or have been addressed in motion practice that also is not at issue on this appeal.

Rosenthal v. Sperling, NY Slip Op 05996 (1st Dep't November 21, 2023)

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Failure to oppose a motion.

A party seeking to vacate a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion. The excuse of law office failure may be deemed reasonable. 

V.C. v. Fly High Indoor Trampoline Park, Inc., NY Slip Op 06024 (2d Dep't November 22, 2023)

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Motions to dismiss.

A pre-answer motion to dismiss may properly be denied where "facts essential to justify opposition may exist but cannot then be stated," pursuant to CPLR 3211 [d].

Ark 357 Doe v. Jesuit Fathers and Bros., NY Slip Op 05975 (1st Dep't November 21, 2023)

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Summary judgment as to liability.

A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. The plaintiff is not required to show freedom from comparative negligence in order to establish his prima facie entitlement to judgment as a matter of law.  However, the issue of the plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.

Bornsztjen v. Zito, NY Slip Op 05706 (2d Dep't November 15, 2023)

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Attorneys' fees.

The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court. In exercising its discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings or engaged in unnecessary litigation.

Blocker v. Blocker, NY Slip Op 05705 (2d Dep't November 15, 2023)

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Summary judgment.

In this toxic tort action, defendant's summary judgment motion is denied because the parties' competing causation evidence constitutes a battle of the experts.

Sason v. Dykes Lbr. Co., Inc., NY Slip Op 05796 (1st Dep't November 16, 2023)

Here is the decision.