Statutes of limitations.

A cause of action for breach of fiduciary duty based on allegations of actual fraud is subject to a six-year limitations period, except where the fraud allegation is only incidental to the claim asserted.  According to the allegations in the complaint, the sponsor's principals' actions in concealing renovation charges in common charge assessments is not incidental to the cause of action pleaded, but rather underpins it, because plaintiff alleges that the sponsor's principals fraudulently used common charges to pay for the building renovation and concealed their actions by disguising the payments as relating to maintenance and repairs. Thus, the cause of action is subject to a six-year limitations period.

Board of Mgrs. of the 443 Greenwich St. Condominium v. SGN 443 Greenwich St. Owner LLC, NY Slip Op 00450 (1st Dep't February 1, 2024)

Here is the decision.

Bicycle accidents.

A person riding a bicycle on a roadway is entitled to all the rights and bears all the responsibilities of a driver of a motor vehicle. A bicyclist is required to use reasonable care for his own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid putting himself in a dangerous position. A motorist is required to keep a reasonably vigilant lookout for bicyclists, to sound the vehicle's horn when a reasonably prudent person would do so in order to warn a bicyclist of danger, and to operate the vehicle with reasonable care to avoid colliding with anyone on the road.

Amancio-Gonzalez v. Medina, NY Slip Op 00400 (2d Dep't January 31, 2024)

Here is the decision.

Appellate practice.

A trial court's ruling on a motion to vacate a note of issue is reviewed under an abuse of discretion standard.

Oldcastle Precast, Inc. v. Steiner Bldg. NYC, LLC, NY Slip Op 00459 (1st Dep't February 1, 2024)

Here is the decision.

Alter ego/veil piercing claims.

There is no independent cause of action for veil piercing.

245 E. 19 Realty LLC v. 245 E. 19th St. Parking LLC, NY Slip Op 00368 (1st Dep't January 30, 2024)

Here is the decision.

Summary judgment.

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.  A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's prima facie burden. 

Zeldin v. Larose, NY Slip Op 00336 (2d Dep't January 24, 2024)

Here is the decision.

Appelate practice.

An argument may properly be considered for the first time on appeal if it involves no new facts other than those that already appear on the record.

Vasquez v. Manhattan Coll., NY Slip Op 00365 (1st Dep't January 25, 2024)

Here is the decision.

Leave to renew.

A motion for leave to renew a prior motion must 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," pursuant to CPLR § 2221[e].

Vasquez v. Manhattan Coll., NY Slip Op 00365 (1st Dep't January 25 2024)

Here is the decision.

Defaulting on a motion.

A party seeking to vacate a default in appearing on the return date of a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense.

Deutsche Bank Natl. Trust Co. v. Moses, NY Slip Op 00294 (2d Dep't January 24, 2024)

Here is the decision.

Proof of proper service.

A process server's affidavit of service constitutes prima facie evidence that the defendant was validly served. However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing. Bare and unsubstantiated denials of service are insufficient to rebut the presumption of proper service created by a duly executed affidavit of service, and a hearing is not required where the defendant fails to swear to specific facts rebutting the statements in the process server's affidavit.

Deutsche Bank Natl. Trust Co. v. Moses, NY Slip Op 00294 (2d Dep't January 24, 2024)

Here is the decsion.

Summary judgment.

While an affidavit is generally considered competent and sufficient evidence on a motion for summary judgment, an affidavit that is conclusory and without specific factual basis does not establish the prima facie burden of a proponent of a motion for summary judgment.

Carboni v. Alfa Romeo USA, NY Slip Op 00351 (1st Dep't January 15, 2024)

Here is the decision.

Service of process.

Valid service pursuant to CPLR 308(2) may be made by delivery of the summons to a person of suitable age and discretion at a defendant's actual place of business. There is no requirement that delivery is to someone who is somehow authorized to accept service on the defendant's behalf.

Carpio v. Morris, NY Slip Op 00293 (2d Dep't January 14, 2024)

Here is the decision.