Defaults.

Pursuant to CPLR 317, a defaulting defendant who was served with a summons other than by personal delivery may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense.  A motion pursuant to CPLR 3012(d) to extend the time to answer the complaint requires the movant to establish a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action,

Funding NY , LLC v. 1237 Dean Street Corp., NY Slip Op 02904 (2d Dep't May 29, 2024)

Here is the decision.

Appellate practice.

On appeal, the record relied upon by the plaintiff does not include various papers relied upon by the Supreme Court, including the pleadings or any of the other papers submitted in support of, or in opposition to, the defendant's motion for summary judgment. Since these omissions have rendered meaningful review of the court's order virtually impossible, dismissal of the appeal is the appropriate disposition.

Fitzpatrick v. Affairs & Banquets Floral Servs., Inc., NY Slip Op 02798 (2d Dep't May 22, 2024)

Here is the decision.

Spousal privilege.

A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage, pursuant to CPLR 4502[b]. While not all spousal communications are privileged, confidential communications induced by the marital relation and prompted by the affection, confidence, and loyalty engendered by the relationship are. In making this determination, spousal communications are presumed to have been conducted under the mantle of confidentiality, and the burden is on the party seeking to overcome the privilege to demonstrate that the communications were not made in confidence. 

There is neither a legal nor a practical basis for finding that one spouse's discussion of what is happening at work would automatically destroy the spousal privilege. Indeed, many conversations about business matters are only had because of the husband-wife relationship.

Smartmatic USA Corp. v. Fox Corp., NY Slip Op 02882 (1st Dep't May 23, 2024)

Here is the decision.

Res judicata.

Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based upon the doctrine of res judicata. Thet doctrine precludes a party from litigating a 'claim where there is a judgment on the merits from a prior action between the same parties, involving the same subject matter. Generally, a dismissal for failure to state a cause of action based on the insufficiency of the allegations in the pleading is not a dismissal on the merits, and does not bar the adequate repleading of the claim in a subsequent action. However, such a determination has a preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission in the earlier complaint.

Ciafone v. City of New York, NY Slip Op 02795 (2d Dep't May 22, 2024)

Here is the decision.

Indemnification.

A party's right to contractual indemnification depends upon the specific language of the contract. A promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances.

Alfieri v. ABB, Inc., NY Slip Op 02792 (2d Dep't May 22, 2024)

Here is the decision.

Storm-in-progress rule.

Under the storm-in-progress rule, a property owner or a tenant in possession will not be held responsible for accidents caused by snow or ice that accumulates during a storm until an adequate period of time has passed following the cessation of the storm to allow an opportunity to ameliorate the hazards caused by the storm. However, once a landowner or a tenant in possession undertakes snow removal during a storm in progress, it must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm. The mere failure of a defendant to remove all the snow and ice, without more, does not establish that the defendant increased the risk of harm.

Corlette v. SN Auto Repairs, Inc., NY Slip Op 02685 (2d Dep't May 15, 2024)

Here is the decision.

Memorial Day

Memorial Weekend

Memorial Weekend

Memorial Weekend

Summary judgment.

A motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.

Smith-Joyner v. Barahona, NY Slip Op 02718 (2d Dep't May 18, 2024)

Here is the decision.