Personal jurisdiction.

A defendant's appearance in an action is deemed to be the equivalent of personal service of a summons, and, in the absence of an objection to jurisdiction by way of a motion or answer, the appearance confers personal jurisdiction over that defendant. In addition to the formal appearances listed in CPLR 320(a), a defendant may appear informally by actively litigating the action before the court. Here, the defendant waived the defense of lack of personal jurisdiction by filing a notice of appearance and opposing the plaintiff's motion for leave to enter a default judgment against the defendant and for an order of reference without simultaneously asserting an affirmative objection to jurisdiction.

Bank of N.Y. Mellon v. Taylor, NY Slip Op 04119 (2d Dep't August 7, 2024)

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Leave to reargue.

A motion for leave to reargue is directed to the trial court's discretion. In order to warrant reargument, the moving party must demonstrate that the court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law, pursuant to CPLR 2221[d].

AWR Group, Inc. v. 240 East Place Hous. Dev. Fund Corp., NY Slip Op 04118 (2d Dep't August 7, 2024)

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CPLR 3216.

CPLR 3216 is an extremely forgiving statute, which never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed. While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay and a meritorious cause of action,  such a dual showing is not strictly necessary in order for the plaintiff to escape dismissal.

Here, where discovery has been completed and there is no evidence that the defendants have been prejudiced by any delay, the Supreme Court did not improvidently exercise its discretion in granting the defendants' motion pursuant to CPLR 3216 to dismiss the complaint only to the extent of directing the plaintiff to file a note of issue on or before January 17, 2023, in order to avoid dismissal of the complaint.

Disla v. El Potrero Sport Bar, Inc., NY Slip Op 04060 (2d Dep't July 31, 2024)

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Summary judgment.

On a motion for summary judgment, the moving defendant does not establish its prima facie entitlement to judgment as a matter of law by merely pointing to gaps in the plaintiff's case. The moving defendant must affirmatively demonstrate the merit of its claim or defense.

Cooper v. First In Queens, Inc., NY Slip Op 04059 (2d Dep't July 31, 2024)

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Slips-and-falls.

A defendant moving for summary judgment in a slip-and-fall case has the burden of demonstrating, 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 discover and remedy it. The defendant has constructive notice of a dangerous 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. In order to meet its burden on the issue of lack of constructive notice, the defendant is required to offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff slipped and fell.

Carmenati v. Sea Park E., L.P., NY Slip Op 05047 (2d Dep't July 31, 2024)

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Adverse possession.

It is well-settled that a municipality cannot lose title through adverse possession to property which it owns in its governmental capacity, or which has been made inalienable by statute. Conversely, when a municipality holds real property in its proprietary capacity, there is no immunity against adverse possession.

Bronxville Scout Comm. v. County of Westchester, NY Slip Op 04055 (2d Dep't July 31, 2024)

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Attorney discipline.

It is well-settled that, absent extremely unusual mitigating circumstances, an attorney who misappropriates funds is presumptively unfit to practice law. In order to establish the requisite venal intent for intentional conversion, all that is required is evidence that the attorney knowingly withdrew IOLA or escrow funds, without permission or authority, and that he used the funds for his own purposes.

Matter of Etheridge, NY Slip Op 04113 (1st Dep't August 1, 2024)

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Admissibility of business records.

A properly executed affidavit may provide a foundation for the admission of business records. However, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.

Bayview Loan Servicing, LLC v. Healey, NY Slip Op 04054 (2d Dep't July 31, 2024)

Here is the decision.

Pleading negligence.

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. An affidavit that raises only a feigned issue of fact is insufficient to defeat the motion.

Andre v. New York City Dept. of Educ., NY Slip Op 04053 (2d Dep't July 31, 2024)

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Labor Law § 240(1).

Under the statute, contractors must provide appropriate safety devices for workers engaging in labor that involves elevation-related risks. In order to prevail on the cause of action, a plaintiff must show, prima facie, that the defendant's statutory violation was a proximate cause of the plaintiff's injuries.

Comparative fault is not a defense to the statute's strict liability,  but where the plaintiff is the sole proximate cause of his own injuries, there can be no liability under the statute. A plaintiff may be the sole proximate cause of his own injuries when, acting as a recalcitrant worker, he (1) had adequate safety devices available; (2) knew both that the safety devices were available and that he was expected to use them; (3) chose, for no good reason, not to do so; and (4) would not have been injured had he not made that choice.

Amaro v. New York City Sch. Constr. Auth., NY Slip Op 04052 (2d Dep't July 31, 2024)

Here is the decision.

Opinion evidence.

Opinion evidence must be based on facts in the record. An expert cannot speculate, guess, or reach a conclusion by assuming material facts not supported by the evidence. The opinion must be supported either by facts disclosed by the evidence or by facts known to the expert personally. It is essential that the facts upon which the opinion is based be established, or fairly inferable, from the evidence.

An expert's affirmation that sets forth general conclusions, misstatements of evidence, and unsupported assertions, and which fails to address the opinions of defendant's expert, is insufficient to defeat summary judgment. Also insufficient is is one which raises for the first time in opposition to summary judgment a new theory of liability that has not been set forth in the bills of particulars or in the complaint.

Cabrera v. Golden, NY Slip Op 04112 (1st Dep't August 1, 2024)

Here is the decision.