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.

Adelson v. Sharkey, NY Slip Op 04443 (2d Dep't September 18, 2024)

Here is the decision.

Service on a corporation.

Pursuant to CPLR 317, a party that was not personally served may defend against an action if it demonstrates that it did not have notice of the action in time to defend and that it has a meritorious defense. Service on a corporation through delivery of the summons and complaint to the Secretary of State is not personal delivery to the corporation.

Here, the defendant established its entitlement to relief from its default under CPLR 317 by demonstrating that the address on file with the Secretary of State at the time the summons and complaint were served was incorrect and, consequently, that it did not receive actual notice of the action in time to defend itself. Further, the evidence does not suggest that the defendant's failure to update its address with the Secretary of State constituted a deliberate attempt to avoid service of process, and there is some evidence in the record suggesting that the plaintiff had knowledge of the defendant's actual business address.

In addition, the defendant demonstrated the existence of potentially meritorious defenses to the causes of action, including a defense based on the general release that terminated the earlier action.

Galatro v. Lake Pointe Owners, Inc., NY Slip Op 04375 (2d Dep't September 11, 2024)

Here is the decision.

Expert opinions.

An expert's competence in a particular subject may derive from long observation and real-world experience, and is not dependent on formal training or having an academic degree in the subject. Where the expert's factual conclusions partially contradict a plaintiff's deposition testimony, the expert opinion is still sufficient to defeat summary judgment where the opinion is based on other record evidence and is neither speculative nor conclusory.

Cameron v. Palmeri, NY Slip Op 04371 (2d Dep't September 11, 2024)

Here is the decision.

Premises liability.

In a premises liability case, the defendant can establish prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of an injury without engaging in speculation.  However, in order to withstand summary judgment, the plaintiff need only raise a triable issue of fact regarding whether defendant's conduct proximately caused plaintiff's injuries.

Here, the defendant met the prima facie burden by submitting the reports of two fire departments, which determined that the cause of the fire at issue was undetermined. However, in opposition, the plaintiff raised a triable issue of fact as to the cause of the fire by submitting an expert' opinion as to the area of the fire origin and that the electrical wiring was the cause of the fire. The opinion was amply supported by the record and was neither speculative nor conclusory. 

Further, the defendant failed to establish, prima facie, that the plaintiff's conduct was a superseding cause of the injuries. The plaintiff's decision to enter the home to put out a fire that he reasonably believed was contained to just the portion of the AC unit that was outside the home was not so obviously fraught with danger that its very nature evidences a wanton disregard for the actor's own personal safety or well-being.

Cameron v. Palmeri, NY Slip Op 04371 (2d Dep't September 11, 2024)

Here is the decision.

Negligence actions.

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he was not at fault in the happening of the accident.  There can be more than one proximate cause of an accident, and it is for the trier of fact to determine the issue of proximate cause. However, proximate cause may determined as a matter of law where the defendant's negligence merely created the opportunity for, but did not cause, the event that resulted in harm to the plaintiff.

Bristol v, Biser, NY Slip Op 04370 (2d Dep't September 11, 2024)

Here is the decision.

Laches.

Laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party. In order to establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of; (2) delay by the complainant in asserting a claim for relief despite the opportunity to do so; (3) lack of knowledge or notice on the part of the offending party that the complainant would assert a claim for relief; and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant. Here, the defendant established that the plaintiffs' more than 10-year delay in seeking to void the defendant's mortgage, together with the prejudice to him by the delay, as he relied on the mortgage as payment for his legal services, warranted application of the doctrine of laches.  The defendant's motion to dismiss the complaint is granted.

Bricker v. Ole Thorsen, NY Slip Op 04369 (2d Dep't September 11, 2024)

Here is the decision.

Vacatur.

CPLR 5015(a)(1) permits the vacatur of an order rendered as a result of excusable default.  Bare allegations of law office failure are insufficient to warrant vacatur.

Bengas v. Ardsley Country Club, Inc., NY Slip Op 04368 (2d Dep't September 11, 2024)

Here is the decision.

Slips-and-falls.

In a slip-and-fall case, the defendant property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence.. In order to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it.  In order to meet its prima facie burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.

Arbit v. Costco Wholesale Corp., NY Slip Op 04366 (2d Dep't September 11, 2024)

Here is the decision.

Discovery disputes.

Before contacting the court regarding a discovery dispute, counsel must consult with one another, in good faith, either in-person or by telephone. If the dispute cannot be resolved other than through motion practice, there must be a supporting affidavit or affirmation attesting to counsel having conducted an in-person or telephonic conference, setting forth the date and time, persons participating, and the length of time of the conference.

Bayview Loan Servicing, LLC v. Evanson, NY Slip Op 04367 (2d Dep't September 11, 2024)

Here is the decision.

The covenant of good faith and fair dealing.

Plaintiff alleges not only breach of contract through failure to meet financial obligations, but, separately, a scheme to divest plaintiff of its interest in the loan at issue by purchasing and foreclosing on a senior loan. Accordingly, plaintiff has stated a claim for breach of the covenant of good faith and fair dealing, which is not duplicative of its contract claim.

Ria R Squared, Inc. v. WD Partners, LP, NY Slip Op 04363 (1st Dep't September 5, 2024)

Here is the decision.

Applicability of the relation-back doctrine.

Application of the doctrine is proper where, as here, a new action has been commenced and consolidated with a prior action. Its application is not limited to those instances where the plaintiff is seeking an amendment of the complaint in the original action. The doctrine may be applied if the party was identified in the prior action but not made a party to that action owing to the plaintiff's failure to comply with the technical requirements for commencing an action.

Picchioni v. Sabur, NY Slip Op 04362 (1st Dep't September 5, 2024)

Here is the decision.