Indemnification.

General Obligations Law § 5-322.1(1) allows contractual provisions requiring indemnification whether or not the promisor is partially negligent.

Shawmut Woodworking & Supply, Inc. v. Cord Contr. Co. Inc., NY Slip Op 00044 (1st Dep't January 9, 2024)

Here is the decision.

Res judicata.

Res judicata extends to matters decided by the bankruptcy courts. Because a dismissal with prejudice is a determination on the merits for res judicata purposes, the Federal Bankruptcy Court's dismissal of the prior bankruptcy proceeding with prejudice precludes this action.

Fuschi v. JP Morgan Chase Bank, N.A., NY Slip Op 00024 (1st Dep't January 4, 2024)

Here is the decision.

Arbitration.

The petition to confirm an arbitration award in favor of petitioner is granted, and respondent's motion to dismiss the petition and vacate the award is denied.

Respondent failed to establish any grounds for vacating the arbitration award, pursuant to CPLR 7511[b]. Respondent contends that the arbitration panel exceeded its power by hearing the parties' fee dispute because it was inextricably intertwined with her allegations of malpractice, which could not properly have been considered by the arbitrators under the Rules of the Chief Administrator of the Courts (22 NYCRR) part 137. However, the fee dispute was the only claim that was heard and resolved by the arbitration panel, which did not address respondent's conclusory malpractice allegations. Further, neither the plain terms of 22 NYCRR part 137 nor the parties' engagement letter precluded the arbitration panel from hearing and determining petitioner's claim for unpaid fees.

Matter of Barton LLP v. Maybank, NY Slip Op 00019 (1st Dep't January 4, 2024)

Here is the decision.

Bus accidents.

In order to establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, the plaintiff must demonstrate that the movement was unusual and violent, rather than merely one of the sort of "jerks and jolts commonly experienced in city bus travel. Objective evidence of the force of the movement is needed, and the plaintiff's mere characterization of the movement as unusual and violent is insufficient. In seeking summary judgment in its favor, the common carrier has the burden of establishing, prima facie, that the movement of its vehicle was not unusual and violent.

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting transcripts of the plaintiff's testimony at her hearing pursuant to General Municipal Law § 50-h and deposition, and the bus driver's deposition testimony, which demonstrated that the movement of the bus was not unusual or violent or of a different class than the jerks and jolts commonly experienced in city bus travel. In opposition, the plaintiff failed to raise a triable issue of fact. 

Magloire v. MTA Bus Co., NY Slip Op 06733 (2d Dep't December 27, 2023)

Here is the decision.

Fiduciary relationships.

The beneficiaries of a fiduciary relationship are entitled to rely on their fiduciary's representations and on its complete and undivided loyalty. They do not have to perform independent inquiries in order to establish reasonable reliance on their fiduciary's representations.

Chan v. Havemeyer Holdings LLC, NY Slip Op 00020 (1st Dep't January 4, 2024)

Here is the decision.

Forum non conveniens.

Defendant-husband's cross-motion to dismiss this divorce action on forum non conveniens grounds, pursuant to CPLR 327, is granted. The parties are Brazilian citizens who were married in Brazil. The one child of the marriage is emancipated. Upon defendant's relocation by his employer, the parties lived here as a married couple for less than four years of their 20-year marriage, their child left for college soon after the parties and she moved here, and the defendant, whose work in international finance takes him around the world, has not worked or lived here since 2021.

Moreover, throughout the marriage, the parties maintained significant assets in Brazil, including a home, a real estate parcel, a stake in a real estate development company, a car, and several bank and other accounts. The defendant, who commenced a divorce action in Brazil after this action was filed, submitted the affidavit of his Brazilian attorney attesting that, pursuant to Brazilian law, Brazilian courts have exclusive jurisdiction over the distribution of those assets. The attorney further attests that, even were the New York court to issue a divorce judgment, the Brazilian property distribution issues would nevertheless have to be litigated in Brazil. Plaintiff wife's response to this point, her own unsupported assertion that the husband's and his Brazilian matrimonial counsel's description was false, based on her unspecified understanding, is meritless. Further, the plaintiff does not substantiate her assertion that discovery and litigating in Brazil are less efficient or otherwise inferior to discovery and litigating here.

Teixeira v. Teixeira, NY Slip Op 00040 (1st Dep't January 3, 2024)

Here is the granted.

Defaults.

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 determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court. In making its determination, the court may excuse a delay or default resulting from law office failure. However, law office failure should not be excused where a default results not from an isolated, inadvertent mistake, but from repeated neglect, or where allegations of law office failure are vague, conclusory, and unsubstantiated.. Mere neglect is not a reasonable excuse.

Here, in support of her motion, the plaintiff' submitted affirmations of her attorney and her treating physician, but they failed to set forth a detailed and credible explanation for the plaintiff's failure to oppose the defendants' motion. The plaintiff's claim of law office failure was vague, conclusory, and constituted mere neglect, and did not establish a reasonable excuse for the default. Furthermore, the plaintiff failed to demonstrate a reasonable excuse for the lengthy delay in moving to vacate the default. 

Kyung Aye Yoon v. Haktung Lam, NY Slip Op 06731 (2d Dep't December 27, 2023)

Here is the decision.

Personal jurisdiction.

The motion to dismiss the complaint as against this defendant is granted for lack of personal jurisdiction pursuant to CPLR 302(a)(2) because there is no evidence that the fire doors that allegedly caused decedent-plaintiff's injury were manufactured in New York. To the contrary, the testimony revealed that defendant, a company incorporated in California, never manufactured any products outside of California. Thus, defendant did not commit a tortious act within the State so as to confer jurisdiction. In addition, there is insufficient evidence of defendant's requisite minimal contacts with New York so as to comport with due process in the exercise of personal jurisdiction over it.

Redell-Witte v. Algoma Hardwoods, Inc., NY Slip Op 06826 (1st Dep't December 28, 2023)

Here is the decision.

Discovery.

It is a fundamental principle in civil litigation that there shall be full disclosure of all matter that is material and necessary in the prosecution or defense of an action. However, a party is not entitled to unlimited, uncontrolled, and unfettered disclosure, and the supervision of discovery is left to the trial court's broad discretion. Absent an improvident exercise of that discretion, its determination will not be disturbed on appeal Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order precluding disclosure that is palpably improper in that it seeks irrelevant and/or confidential information, or is overly broad and burdensome.

Kopelevich & Feldsherova, P.C. v. Geller Law Group, P.C., NY Slip Op 06730 (2d Dep't December 27, 2023)

Here is the decision.

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.