Motions to consolidate.

Consolidation serves the interest of judicial economy and the prevention of inconsistent determinations based on the same facts, pursuant to CPLR 602[a]. The motion will be granted where the two actions arise out of the same underlying occurrence, and they have common questions of law and significantly overlapping facts. Opposition to the motion requires a showing that consolidation would prejudice a substantial right

Steele v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 06498 (1st Dep't December 19, 2023)

Here is the decision.

Summary judgment.

Plaintiff's expert relied on plaintiff's testimony as the basis for his opinion rather than relying on his own observations. Therefore,  his opinion is speculative and fails to raise a question of fact sufficient to defeat defendant's motion.

Williams v. Plaxall Realty Sub, LLC, NY Slip Op 06463 (1st Dep't December 14, 2023)

Here is the decision.

Prima facie tort.

In order to state a cause of action to recover damages for prima facie tort, the plaintiff must allege: (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or a series of acts which would otherwise be lawful. The complaint must plead the defendant's malicious intent or disinterested malevolence as the sole motive for the challenged conduct.

Banschick v. Johnson, NY Slip Op 06231 (2d Dep't December 6, 2023)

Here is the decision.

Notices to admit.

CPLR 3123(a) authorizes the service of a notice to admit upon a party, and provides that if a timely response thereto is not served, the contents of the notice are deemed admitted. However, the only purpose of the notice is to eliminate from contention those matters which are not in dispute in the litigation and which may be readily disposed of. The notice may not be used to obtain information in lieu of other disclosure devices, or to compel admissions of fundamental and material issues or contested ultimate facts.

American Bldrs. & Contrs. Supply Co., Inc. v. Vinyl is Final, Inc., NY Slip Op 06346 (2d Dep't December 13, 2023)

Here is the decision.

Statutes of limitations.

An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt.

Anglestone Real Estate Venture Partners Corp. v. Bank of N.Y. Mellon, NY Slip Op 06109 (2d Dep't November 29, 2023)

Here is the decision.

Easements.

An easement is not a personal right of the landowner but is an appurtenance to the land benefitted by it, and a grant of the land carries with it the grant of the easement. There is an easement appurtenant when the easement is created in writing, subscribed by the creator, and burdens the servient estate for the benefit of the dominant estate. However, the rule in New York is that a deed with a reservation or exception by the grantor in favor of a third party, a so-called stranger to the deed, does not create a valid interest in favor of that third party. Therefore, in order for an easement by grant to be effective, the dominant and servient properties must have a common grantor.

Daniello v. Wagner, NY Slip Op 06116 (2d Dep't November 29, 2023)

Here is the decision.

Account stated.

An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due. An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account.

D & N Lending, LLC v. Tachlis Corp., NY Slip Op 06115 (2d Dep't November 29, 2023)

Here is the decision.

Appellate practice.

No appeal lies from the denial of reargument. Here, the appellant's motion, though denominated as one for leave to renew and reargue, was, in actuality, one for leave to reargue, the denial of which is not appealable. The appeal is dismissed, with costs.

Constable v. Staten Is. Univ. Hosp., NY Slip Op 06114 (2d Dep't November 29, 2023)

Here is the decision.

Labor Law.

Labor Law § 200 codifies an owner's or general contractor's common-law duty of care to provide construction site workers with a safe place to work. Claims under this section may arise from an alleged defect or dangerous condition on the premises, or from the manner in which the work was performed.  Where the defendant is not an owner or general contractor, there can be no liability under Labor Law § 200.

Tisselin v. Memorial Hosp. for Cancer & Allied Diseases, NY Slip Op 06210 (1st Dep't November 30, 2023)

Here is the decision.

Condominium boards.

The board is responsible for running the day-to-day affairs of the condominium, and, to that end, may have broad powers regarding financial decision-making and promulgating regulations. Where the board's disputed decision is based on a governing document which provides that consent shall not be unreasonably withheld, the heightened standard of reasonableness is applied in lieu of the usual business judgment rule. This standard of reasonableness hinges on whether the board's decision is legitimately related to the welfare of the condominium.

Wong v Board of Mgrs. of the 45 W. 67th St. Condominium, NY Slip Op 06211 (1st Dep't November 30, 2023)

Here is the decision.

Appellate practice.

An order is not appealable as of right where the order did not decide a motion made on notice, pursuant to CPLR 5701[a][2]. However, the Appellate Division may deems the notice of appeal to be a motion for leave to appeal, and it may grant such leave.

Junmei Zhang v. City of New York, NY Slip Op 06325 (1st Dep't December 7, 2023)

Here is the decision.