Moving for a default judgment.

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear. The motion court does not have a mandatory, ministerial duty to grant the motion, and retains the discretionary obligation to determine whether the movant has met the burden of pleading a viable cause of action. 

Cunningham v. New York City Dept. of Educ., NY Slip Op 00063 (2d Dep't January 10, 2024)

Here is the decision.

Motions for civil contempt.

The movant must establish that: (1) there was a lawful court order, clearly expressing an unequivocal mandate; (2) with knowledge of the order's terms, the order was disobeyed; and (3) the movant was prejudiced by the offending conduct. There is a showing of prejudice where the offending party's actions were calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of a party. The movant bears the burden of establishing contempt by clear and convincing evidence, and the motion is addressed to the court's sound discretion. 

Colon v. Crespo, NY Slip Op 00062 (2d Dep't January 10, 2024)

Here is the decision.

Negligence actions.

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's comparative fault, or lack thereof, is not a consideration in determining whether the plaintiff has made a prima facie showing on the issue of the defendant's liability. 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 and culpable conduct on the part of the plaintiff.

Ali v. Alam, NY Slip Op 00061 (2d Dep't January 10, 2024)

Here is the decision.

Municipal liability.

The City may be liable under the special relationship doctrine only if the action at issue was a ministerial one, as opposed to a discretionary one, and if the City violated a duty owed to plaintiff that is separate and apart from its duty to the public generally. It is well-settled that providing temporary housing for homeless families is a governmental function mandated by the state constitution for the benefit of the general public.

Maldonado v. Young & Booby Realty Corp., NY Slip Op 00048 (1st Dep't January 9, 2024)

Here is the decision.

CPLR 4519.

Defendant's motion in limine to bar testimony by plaintiff concerning conversations with decedent regarding her will and estate plan is granted. Plaintiff's testimony concerning conversations with decedent regarding her intention that he receive half of her estate after his divorce was final is barred by CPLR 4519, since the testimony would be offered against defendant, decedent's survivor, who derived her interest in decedent's assets from decedent.

However, CPLR 4519 does not bar the testimony of third-party witnesses concerning conversations with decedent about her will, estate plan, or the alleged oral agreement between plaintiff and defendant to transfer to plaintiff half of decedent's assets after his divorce, since the third parties do not have an interest in decedent's estate. Testimony by plaintiff concerning the alleged oral agreement is proper since those conversations do not constitute extrinsic evidence in derogation of the will and do not call into question whether the will reflected decedent's intentions. Although extrinsic evidence may not be used to challenge a clear and unambiguous will, here, the issue is whether the parties had an oral agreement that required defendant to transfer certain property or assets to plaintiff after distribution of the estate.

Castellotti v. Free, NY Slip Op 00045 (1st Dep't January 9, 2024)

Here is the decision.

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.