Negligence.

It is well settled that a finding of negligence requires the breach of a duty because, in the absence of a duty, there is no breach, and, without a breach, there can be no liability. If a defendant owes no duty to a plaintiff, there can be no liability in damages, however careless the conduct or foreseeable the harm. Foreseeability should not be confused with duty and may not be relied on to create a duty. The principle of foreseeability is applicable to determine the scope of the duty only after it has been found to exist, and that if there is no duty, then the principle is inapplicable and the foreseeability of the accident is irrelevant.

Dibrino v. Rockefeller Ctr. North, Inc., NY Slip Op 03558 (1st Dep't July 2 2024)

Here is the decision.

Sua sponte dismissal.

A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal.  A court may not sua sponte dismiss a complaint for failure to move for a judgment of foreclosure and sale by an arbitrary date set by the court. In order to obtain appellate review of an order or portion of an order issued sua sponte, a party may move to vacate the order or portion of the order and appeal as of right to the Appellate Division if the motion to vacate is denied. 

James B. Nutter & Co. v. Heirs and Distributees of the Estate of Rose Middleton, NY Slip Op 03472 (2d Dep't June 26, 2024)

Here is the decision.

Premises liability.

A plaintiff may recover in negligence for damages to property when the defendant's failure to maintain real property in a reasonably safe condition proximately caused the plaintiff's damages. A defendant- landowner moving for summary judgment has the burden of establishing, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it. A defendant has constructive notice of a dangerous or defective condition when it is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it. When the defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.

Huang v. Fort Greene Partnership Homes Condominium, NY Slip Op 03471 (2d Dep't June 26, 2024)

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The death of a party.

The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made, pursuant to CPLR 1015(a).  Any determination rendered without a substitution will be deemed a nullity.

The death of a party terminates the party's attorney's authority to act on behalf of the deceased. Here, the decedent's former attorneys moved to dismiss the complaint, purportedly on behalf of the decedent. Since the former attorneys lacked the authority to act, the Supreme Court lacked jurisdiction to consider the motion. Accordingly, so much of the order as granted the motion purportedly made on behalf of the decedent is a nullity.

Fazilov v. Acosta, NY Slip Op 03470 (2d Dep't June 26, 2024)

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Moving for summary judgment.

It is axiomatic that successive summary judgment motions are disfavored. Parties may bot make successive fragmentary attacks upon a cause of action, but must assert all available grounds when moving for summary judgment. There can be no reservation of any issue to be used upon any subsequent motion for summary judgment. A court, upon a motion for summary judgment, must examine all of the facts presented by the affidavits, pleadings, and documents and decide whether the moving papers raise a triable issue is raised. The court may not, on a subsequent motion, consider anything which a party has withheld or failed to urge as a ground for summary judgment theretofore denied.

Priester v. Phanor, NY Slip Op 03554 (1st Dep't June 27, 2024)

Here is the decision.

Motions to dismiss.

A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. in order to be considered documentary, evidence must be unambiguous and of undisputed authenticity.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. Upon the submission of evidentiary material in support of such a motion, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that there is no significant dispute exists regarding it, dismissal should not be granted.

B&B Maintenance Servs., Inc. v. Town of Oyster Bay, NY Slip Op[ 03399 (2d Dep't June 20, 2024)

Here is the decision.

Vacatur.

A defendant seeking to vacate a default in answering or appearing pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court.  In determining whether there is a reasonable excuse, a court should consider all the relevant factors, including the extent of the delay, prejudice to the opposing party, whether the default was willful, and the strong public policy in favor of resolving cases on the merits.

Here, the defendant's excuse that he believed that the attorney representing him in separate litigation was addressing this action was unreasonable. Mere neglect is not a reasonable excuse. Likewise, his conclusory and unsubstantiated claim that he was hampered by the restrictions imposed in response to the COVID-19 pandemic does not amount to a reasonable excuse.

American Cancer Socy., Inc. v. Ashby, NY Slip Op 03398 (2d Dep't June 20, 2024)

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A legal malpractice action.

Defendants' motion for summary judgment dismissing the complaint is granted. Defendants met their prima facie burden by submitting the affidavit of their legal expert, who averred that defendants did not depart from the applicable standard of care in prosecuting plaintiff's medical malpractice action. Defendants established that their decisions were reasonable and strategic courses of action. Plaintiff cannot show that, but for defendants' negligence, she would have obtained a verdict after trial that exceeded the settlement amount defendants negotiated.

Bet Yang v. Pagan Law Firm, P.C., NY Slip Op[ 03394 (1st Dep't June 20, 2024)

Here is the decision.

Intentional infliction of emotional distress.

As to the claim for intentional infliction of emotional distress, plaintiff has failed to allege all elements of that claim: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. Although the complaint alleges that defendants engaged in extreme and outrageous conduct, plaintiff fails to adequately plead that defendants acted with the intent or disregard necessary to support his claim.

Furthermore, plaintiff's allegations regarding defendants' intentions and plaintiff's injuries state little more than bare legal conclusions and are not sufficiently particularized to demonstrate the required causal connection.

Zheng v. Centers Urgent Care Mgt., LLC, NY Slip Op 03395 (1st Dep't June 20, 2024)

Here is the decision.