A vehicle owner's vicarious liability.

Vehicle and Traffic Law § 388(1) provides that, with the exception of commercial lessors of motor vehicles, which are exempt from vicarious liability under federal law, the owner of a motor vehicle is liable for the negligence of one who operates the vehicle with the owner's express or implied consent. The statute creates a presumption that the driver was using the vehicle with the owner's express or implied permission, which may be rebutted only by substantial evidence sufficient to show that the vehicle was not operated with the owner's consent.  Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use. However, the uncontradicted testimony of a vehicle owner or a vehicle owner's employee that a vehicle was operated without the owner's permission does not, by itself, overcome the statutory presumption of permissive use.

Dombalic v. Cornelius, NY Slip Op 05434 (2d Dep't November 6, 2024)

Here is the decision.

Service of process.

Defendant's motion to dismiss the complaint for lack of personal jurisdiction is denied. Plaintiff landlord's properly executed affidavit of service constituted prima facie evidence of proper service of the summons and complaint upon defendant-lease guarantor. The affidavit of service attests to attempted personal service upon defendant on three separate dates and times at a nightclub business address that defendant designated for notice purposes in connection with his execution of the lease guaranty. On the fourth service attempt, the process server resorted to affix and mail service, pursuant to CPLR 308[4].

Defendant argues that because of the Covid lockdown and the nightclub's temporary closure, the nightclub address could no longer be deemed his actual place of business, and that service at that location did not afford him with reasonable notice of the action against him for purposes of acquiring personal jurisdiction. However, because defendant designated the nightclub address as his business address for notice purposes under the guaranty, he may not now reasonably claim he was not properly served. In addition, defendant had a contractual duty under the guaranty to keep the landlord apprised of a current address for receipt of notices in connection with the guaranty, and he never changed the address.

Accordingly, defendant's mere denial of receipt of process fails to rebut the presumption of proper service created by the affidavit of service.

Amcojor Realty Corp. v. Butter Mgt. LLC, NY Slip Op 05476 (1st Dep't November 7, 2024)

Here is the decision.

Striking a pleading.

The drastic remedy of striking a pleading is not warranted where the motion court does not find a long-standing pattern of willful or contumacious failure to comply with discovery demands or orders, pursuant to CPLR 3126.

Farrell Limousine Serv. LLC v. Macro Consultants, LLC, NY Slip Op 05402 (1st Dep't October 31, 2024)

Here is the decision.

Appellate practice.

The plaintiff contends that the submissions of the building defendants and the purchaser defendants were insufficient to demonstrate that the building defendants complied with various notice requirements prior to the auction transferring the plaintiff's proprietary lease and shares of stock in the subject apartment. This contention, however, was not raised in opposition to the separate motions of the building defendants and the purchaser defendants. Instead, the plaintiff improperly raised this contention for the first time on appeal, and, therefore, it is not properly before the Appellate Division.

Cobb v. 1710 Carroll Owners Corp., NY Slip Op 05324 (2d Dep't October 20, 2024)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.