Contract law.

Defendant's motion for summary judgment with respect to plaintiff's breach of contract cause of action is denied, as plaintiff sufficiently raised issues of fact with respect to damages. In discovery, plaintiff provided interrogatory responses and produced admissible documentary and testimonial evidence regarding the contract price, plaintiff's estimated costs of performance, and defendant's non-payment. In addition plaintiff's director of business development, testified at deposition that the proffered documents were generated in the ordinary course of business, and he gave details regarding the project costs contained in the documents. Since the parties entered into a fixed-price construction contract where defendant allegedly prevented performance, plaintiff adequately proffered evidence raising a factual issue about damages.

Adler Windows, Inc. v. Freidheim, NY Slip Op 05396 (1st Dep't October 31, 2024)

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Court holiday.

Sidewalk defects.

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner. That section imposes a non-delegable duty on a property owner to maintain and repair the sidewalk abutting its property. Generally, the issue of whether a dangerous or defective condition exists on a property depends on the facts of each case and is a question of fact for the jury. However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub a toe, or trip.  In other words, if a defect is so slight that no careful or prudent person would reasonably anticipate any danger from it, and yet an accident occurs that is traceable to the defect, there is no liability. A defendant seeking dismissal of a complaint on the basis that an alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact. There is no minimal dimension test or per se rule that the condition must be of a certain height or depth in order to be actionable. Instead, in determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect along with the time, place, and circumstance of the injury. This analysis may include consideration of the weather and lighting conditions in the area, the plaintiff's familiarity therewith, the extent to which the area may have been crowded, and whether the alleged defect was otherwise obscured or concealed at the time of the accident. Photographs that are acknowledged to fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable.

Brothers v. Nisan Maintenance Corp., NY Slip Op 05323 (2d Dep't October 30, 2024)

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Rear-end collisions.

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a non-negligent explanation for the collision to rebut the inference of negligence. Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation for the collision. Thus, in a three-vehicle chain-collision accident, the defendant operator/owner of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle.

Beltre v. Menegos, NY Slip Op 05322 (2d Dep't October 30, 2024)

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Negligence actions.

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.  In order to be entitled to summary judgment on the issue of liability, a plaintiff does not have the burden of establishing the absence of his own comparative negligence. However, the issue of a plaintiff's comparative negligence may be decided in the context of a plaintiff's motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of an affirmative defense alleging comparative negligence.

Arnold v. Shepitka, NY Slip Op 05321 (2d Dep't October 30 2024)

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Bankruptcy.

Upon the filing of a voluntary bankruptcy petition, all property which a debtor owns, including claims and causes of action, vests in the bankruptcy estate. Thus, when plaintiff filed for bankruptcy, her claims against defendants became property of the bankruptcy estate and only the trustee had standing to commence and prosecute the claims in the instant action.

Since this action was commenced by a party without standing to sue, dismissal is required. This flaw cannot be cured by a simple amendment substituting the trustee in place and stead of plaintiff debtor. The dismissal, however, is without prejudice, and the parties' arguments concerning CPLR 205(a) are premature until such a time as the trustee commences an action.

Messer v. Hughes, NY Slip Op 05309 (1st Dep't October 29, 2024)

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Premature summary judgment motions.

While a party is entitled to a reasonable opportunity to conduct discovery in advance of a summary judgment determination, a party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.

Woodham v. New York City Transp. Auth., NY Slip Op 05239 (2d Dep't October 23, 2024)

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Court holiday.

The efficacy of affidavits.

Factual affidavits do not constitute documentary evidence within the meaning of CPLR 3211(a)(1). Where the affiant offers no basis to find personal knowledge of the facts stated therein, the affidavit is without probative value.

Juman v. Cape Church Assoc., LLC, NY Slip Op 05281 (1st Dep't October 24, 2024)

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Premises liability.

An out-of-possession landlord is not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or a course of conduct by the landlord giving rise to a duty.

Greco v, St. Bridget's Church at Westbury, Queens Co., NY Slip Op 05203 (2d Dep't October 23, 2024)

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Vacating a default judgment.

Plaintiff's motion to vacate a default judgment dismissing the complaint is denied.

Notwithstanding plaintiff's showing of merit, he failed to demonstrate a reasonable excuse for failing to oppose the City's motion to dismis. While plaintiff's counsel adequately explained the failure to respond to the hard copy of the City's motion, counsel failed to explain why he did not e-file a notice of appearance, thereby ensuring he would have received notice of the motion to dismiss via the court's e-filing system, until November 2021, well after he informed the City of his representation of plaintiff. This occurred after he received plaintiff's file, which he suggested he needed to properly address this case.

Moreover, counsel's failure to respond to the City's motion was part of a larger pattern of neglect. Plaintiff has not explained why his second and third counsel did not fully comply with a September 3, 2020 discovery order until March 2023, when current counsel filed his motion to vacate. Plaintiff also has not explained why, after his current counsel learned of the March 2022 order of dismissal and failed to reach plaintiff by phone, counsel did not notify plaintiff of the order by mail or seek to vacate the default until almost a year after notice of entry of the order.

Bey v. City of New York, NY Slip Op 05274 (1st Dep't October 24, 2024)

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