Summary judgment.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any triable issues of fact. The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers. If there is any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied.

Basil v. Renny, NY Slip Op 06324 (2d Dep't December 18, 2024)

Here is the decision.

Appellate practice.

Defendant's constitutional arguments are beyond consideration by the Appellate Division because they are raised for the first time on appeal. In addition, they are barred by the law of the case, as the precise restrictions in the permanent injunction about which he complains have been affirmed by the Appellate Division.

60 E. 9th St. Owners Corp. v. Zihenni, NY Slip Op 06647 (1st Dep't December 31, 2024)

Here is the decision.

Holy, Healthy, and Happy New Year.

Discovery abuses.

The Appellate Division affirmed the imposition of a $10,000 sanction against defendants for discovery abuses, pursuant to CPKR 3126. Based on the court's admonition at a discovery conference, both parties were on actual notice that the non-prevailing party on a discovery-related motion would be responsible for the legal fees of the prevailing party. In granting plaintiff's motion to compel access to his upstairs neighbor's apartment to perform a water test to determine the source of a persistent leak, the court credited plaintiff's position that the condominium's governing documents vested defendants with the authority to access the unit for inspection and testing when a condition in one unit is causing damage in another unit. Defendants refused to exercise that authority, even after the court noted that the request was proper, requiring plaintiff to have to move to compel discovery. The $10,000 sanction was appropriate.

Etkin v, Sherwood Residential Mgt. LLC, NY Slip Op 06424 (1st Dep't December 19m 2024)

Here is the decision.

Invalidating a release.

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. However, a release may be invalidated for any of the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake. In addition, a release may be set aside on the ground that it was not fairly and knowingly made. This basis for setting aside a release may be applied in situations falling far short of actual fraud' such as when, because the releasor has had little time for investigation or deliberation, or because of overreaching or unfair circumstances, it was deemed inequitable to allow the release to serve as a bar to the claim of an injured party. Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden going forward to the plaintiff to show that there has been fraud, duress, or some other fact which will be sufficient to void the release.

Applewhite v. 112 Liberty Assoc., LLC, NY Slip Op 06323 (2d Dep't December 18, 2024)

Here is the decision.

Waiver of trial by jury.

While the New York Constitution provides for a right of trial by jury, pursuant to NY Const art 1, § 2, it is well-settled that jury waiver agreements are valid and enforceable.

International Business Machs. Corp. v. GlobalFoundries U.S. Inc., NY Slip Op 06425 (1st Dep't December 19, 2024)

Here is the decision.

Injunctive relief.

A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that, absent the injunction, it will suffer irreparable harm. In order to establish prima facie entitlement to a permanent injunction, a plaintiff must demonstrate: (a) that there was a violation of a right presently occurring, or threatened and imminent; (b) that there is no adequate remedy at law; (c) that serious and irreparable harm will result absent the injunction; and (d) that the equities are balanced in its favor. For the purposes of equity, irreparable harm means any injury for which money damages are insufficient.  Where an injury can be adequately compensated by money damages, injunctive relief is inappropriate.

Rockefeller v. Leon, NY Slip Op 06370 (2d Dep't December 18, 2024)

Here is the decision.

Contract law.

The interpretation of an unambiguous contract is a question of law, and collateral estoppel does not bar relitigation of a pure question of law.

Deer Park  Rd. Mgt. Co., LP v. Nationstar Mtge., LLC, NY Slip Op 06422 (1st Dep't December 19, 2024)

Here is the decision.

Default judgments.

On a motion for leave to enter a default judgment under CPLR 3215, a plaintiff must submit proof of service of the summons and the complaint, the facts constituting the causes of action, and the defendant's default, pursuant to CPLR 3215[f].

Smith v. Realty on Fox Croft Corp,, NY Slip Op 06371 (2d Dep't December 18, 2024)

Here is the decision.

Merry Christmas.

Brinks BOQ.