Notices of claim.

A notice of claim must set forth the nature of the claim, and the time, place, and manner in which the claim arose.  Evidence extrinsic to the notice cannot be used to substantively change the nature of the claim or the theory of liability, since causes of action or legal theories may not be raised in the complaint, or in a bill of particulars, that were not set forth in the notice of claim and that change the nature of the claim or assert a new one. Contrary to the plaintiff's contention, his claim in his bill of particulars that the City created the dangerous condition asserted a new theory of affirmative negligence that was not raised in his notice of claim. Accordingly, this theory cannot be considered in evaluating the City's motion for summary judgment.

Jacobwitz v. City of New York, NY Slip Op 06729 (2d Dep't December 27, 2023)

Here is the decision.

Appellate practice.

A party cannot raise an argument on appeal where it had defaulted on the motion at issue, thereby failing to raise that argument below.

Hamilton v. 208-214 E. 25h St., LLC, NY Slip Op 06594 (1st Dep't December 21, 2023)

Here is the decision.

Vacating a note of issue.

A motion to vacate the note of issue more than 20 days after it was filed requires a showing of good cause for the delay, or of substantial prejudice to the movant because of unusual or unanticipated circumstances subsequent to the filing, under 22 NYCRR 202.21 [d], [e].  A lack of due diligence in seeking discovery does not constitute an unusual or unanticipated circumstance.

Peterson v. City of New York, NY Slip Op 06601 (1st Dep't December 21, 2023)

Here is the decision.

Venue.

Defendant's motion to change venue is denied. Pursuant to CPLR 510 [1], Defendant met its threshold burden of raising an issue as to plaintiff's residence by annexing documents indicating that plaintiff was a Connecticut resident. However, in opposition, plaintiff, through his detailed affidavit and corroborating documents, sufficiently established his bona fide residency,with some degree of permanency, in Bronx County.

Vaccaro v. Mercedes-Benz USA, NY Slip Op 06603 (1st Dep't December 21, 2023)

Here is the decision.

Summary judgment.

Summary judgment may be awarded on an unpleaded cause of action if the proof supports the cause of action  and if the opposing party has not been misled to its prejudice.

Castillo v. Hawke Enters., LLC, NY Slip Op 06505 (2d Dep't December 20, 2023)

Here is the decision.

Leave to renew.

CPLR 2221(e)(2) and (3) provides, in relevant part, that "[a] motion for leave to renew . . . shall be based upon new facts not offered on the prior motion that would change the prior determination . . . [and] shall contain reasonable justification for the failure to present such facts on the prior motion." The requirement of new or additional facts that were unknown to the movant is a flexible one and the court, in its discretion, may grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made. In this slip-and-fall action, the plaintiff established a reasonable justification for her failure to provide the video recording of the condition of the floor in her opposition to the defendant's summary judgment motion. Renewal is granted.

Blackman v. Red Lobster Hospitality, LLC, NY Slip Op 06504 (2d Dep't December 20, 2023)

Here is the decision.

Defaults.

In the absence of an already existing default order or judgment, an affidavit of merit is not necessary when opposing a plaintiff's motion for a default judgment or in seeking to compel a plaintiff to accept the defendant's late answer.

Watts v. Garcia, NY Slip Op 06604 (1st Dep't December 21, 2023)

Here is the decision.

Employment discrimination under New York's Human Rights Laws.

A plaintiff alleging employment discrimination in violation of the State statute must establish (1) membership in a protected class; (2)  qualification to hold the position; and (3) an adverse employment acttion, taken (4) under circumstances giving rise to an inference of discrimination.  Under the City statute, the plaintiff must establish that, on the basis of a protected characteristic, he was subject to an unfavorable employment change or treated less well than other employees. Under both the State and City statutes, the action must be commenced within three years of the alleged unlawful discriminatory practice or act of discriminatory harassment.

Acala v. Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., NY Slip Op 06345 (2d Dep't December 13, 2023)

Here is the decision.