Appellate practice.

The Supreme Court properly treated the defendant's motion, denominated as one for leave to renew and reargue its motion for summary judgment, as one for leave to reargue the motion. As the denial of a motion for leave to reargue is not appealable, the appeal from the order must be dismissed.

Brilliantine v. East Hampton Fuel Oil Corp., NY Slip Op 06112 (2d Dep't November 29, 2023)

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Rear-end collisions.

It is well-settled that a rear-end collision with a slowing or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the the trailing vehicle.  A defendant's claim that the lead vehicle made a sudden stop, without more, is insufficient to rebut the presumption of negligence.

Here, plaintiff met the prima facie burden of establishing his entitlement to summary judgment on the issue of liability by submitting an affidavit stating that when he braked because of the 15 miles per hour speed limit imposed in a construction area, defendant's car collided with the rear of his vehicle.

In opposition, defendant failed to provide a non-negligent explanation for the accident. Defendant failed to establish that she maintained a safe following distance, pursuant to Vehicle and Traffic Law § 1129[a], and that plaintiff's repeated braking was not foreseeable given the speed limitation in the construction zone.

Plaintiff's motion was not premature, pursuant to CPLR 3212[f]. His affidavit established that a rear-end collision occurred, and defendant was in a position to proffer sufficient relevant information concerning the circumstances of the accident.

Ahmad v. Behal, NY Slip Op 06196 (1st Dep't November 30, 2023)

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Summary judgment.

Successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause.  Evidence is not newly discovered simply because it was not submitted on the previous motion. Instead, the evidence that was not submitted must be used to establish facts that were not available to the party at the time it made its initial motion and which could not have been established through alternative evidentiary means.

Here, the defendant failed to establish that the evidence submitted in support of its second motion for summary judgment dismissing the plaintiffs' claims for damages relating to the diminution in value of certain real property and of certain artwork, purportedly demonstrating that the plaintiffs did not sustain any damages as a result of an oil spill, was not available to it, and could not have been submitted, on its prior motion.

In any event, the conflicting experts' opinions submitted by the parties raise issues of fact which preclude summary judgment.

Defendant's motion is denied.

Brilliantine v. East Hampton Fuel Oil Corp., NY Slip 06111 (2d Dep't November 29, 2023) 

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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)

Here is the decision.

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)

Here is the decision.