Expert opinions.

The parties' conflicting expert affidavits raise issues of fact and credibility that cannot be resolved on a motion for summary judgment.

Legrand v. USC-NYCON, LLC, NY Slip Op 00379 (1st Dep't January 23, 2024)

Here is the decision.

Extending time.

Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time to effect service for good cause shown or in the interest of justice. In order to establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. If good cause for an extension is not established, courts must consider the broader interest of justice standard of CPLR 306-b. Under the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant.

21st Mtge. Corp. v. Akter, NY Slip Op 00413 (2d Dep't January 29, 2024)

Here is the decision.

Property law.

As a general rule, when lands described in a conveyance are bounded by a street, highway or road, the conveyance is deemed to pass title to the center of the abutting roadway. The centerline presumption can be rebutted by a showing that the grantor intended to limit the grant to the edge of the road. An instrument creating or transferring an estate or interest in real property must be construed according to the parties' intent, so far as it can be gathered from the whole instrument and is consistent with the rules of law. Where the language used in a deed is ambiguous so that it is susceptible of more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances.

2832 Linden Blvd. Realty, LLC v. Health Ins. Plan of Greater N.Y., NY Slip Op 00302 (2d Dep't January 22, 2024)

Here is the decision.

Sidewalk defects.

Plaintiff failed to demonstrate prima facie that defendants had constructive notice of the alleged defect in the sidewalk abutting their building, since plaintiff and representatives of defendant all testified that they never noticed any sidewalk defect in the four years before plaintiff's accident. Plaintiff testified that certain photographs accurately depicted the condition in the area of her accident at the time she tripped and fell, rendering those photographs admissible. The parties' testimony and the photographs, which show a visible line or gap across the sidewalk, thus present an issue of fact as to whether the alleged sidewalk defect was sufficiently visible and apparent to permit defendant's employees to discover and remedy it. The court properly declined to consider Google map photos taken two or more years before the accident, absent any evidence that those photos represent the condition of the sidewalk on the date of the accident.

The court denied plaintiff's motion to strike the affirmative defense of comparative negligence. In light of plaintiff's testimony that she did not see the sidewalk because she was looking straight ahead, it is for the jury to consider whether plaintiff failed to see the sidewalk defect, thereby contributing to her accident.

Plaintiff's motion for summary judgment on the issue of liability is denied.

Yanky v. 2839 Bainbridge Ave. Assoc., LLC, NY Slip Op 00301 (1st Dep't January 21, 2024)

Here is the decision.

Medical malpractice.

The elements of a medical malpractice cause of action are (1) a deviation or departure from accepted community standards of practice and (2) that the departure was a proximate cause of the plaintiff's injuries. When moving for summary judgment, a defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. If the defendant makes that showing, the plaintiff, in opposition, must submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden.

Chillious v. Edouard, NY Slip Op 00209 (2d Dep't January 15, 2024)

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Account stated.

An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due. An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account.

Here, the plaintiff established its prima facie entitlement to judgment as a matter of law on the second and fourth causes of action, seeking recovery on an account stated, by submitting evidence that the defendant received and retained, without objection, the invoices that the plaintiff sent to him seeking payment for professional services rendered, setting forth the billable hours expended, and identifying the services rendered. In opposition, the defendant failed to raise a triable issue of fact.

Steven Cohn, P.C. v. Freedman, NY Slip Op 00242 (2d Dep't January 15, 2024)

Here is the decision,.

Age discrimination claims.

The Appellate Division affirmed the denial of defendants' motion for summary judgment dismissing plaintiff's City Human Rights Law claim based on age discrimination, as the evidence, including plaintiff's own testimony as corroborated by three witnesses, raises issues of fact as to whether plaintiff was treated differently or less well than other employees because of her age. Contrary to defendants' contention, plaintiff does not need to show an adverse employment action in order to establish a prima facie case of discrimination under the City Human Rights Law.

Lopez v. Trahan, NY Slip Op 00274 (1st Dep't January 16, 2024)

Here is the decision.

Discovery disputes.

The resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court. Pursuant to CPLR 3126(3), "[i]f any party . . . refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed[,] the court may make such orders with regard to the failure or refusal as are just," including dismissal of the action. This statute broadly empowers a trial court to craft a conditional order, which imposes a sanction, unless, within a specified time, the resisting party submits to the disclosure. If a party fails to comply with the order by the specified date, the conditional order becomes absolute, In order to be relieved of the impact of a conditional order issued pursuant to CPLR 3126, a party must demonstrate a reasonable excuse for their failure to comply with the conditional order and the existence of a meritorious claim or defense.

Winters v. City of New York, NY Slip Op 00245 (2d Dep't January 15, 2024)

Here is the decision.

Nondisclosure agreements.

Supreme Court properly concluded that terms of the nondisclosure agreement (NDA) covered all of plaintiff's claims. The language of the NDA is unambiguous as to whether plaintiff agreed to waive future claims, as it expressly specified that plaintiff was releasing claims "arising prior to the signing" of the agreement and claims arising at "any time in the future after the signing" of the agreement. Despite plaintiff's position otherwise, a clause releasing future claims as to the very matter in controversy does not contravene public policy.

Even supposing that the NDA was signed under duress, plaintiff ratified the document by accepting its benefits over a five-and-a-half-year period. As the motion court found, plaintiff received approximately $9 million from defendant after signing the NDA, including a $100,000 stipend that plaintiff received every month throughout the life of the NDA. Plaintiff accepted each payment without protest and only commenced this action seeking to disaffirm the NDA three months after the payments ceased. To this date, plaintiff has not returned any portion of the benefits she received under the NDA.

Ganieva v. Black, NY Slip Op 00271 (1st Dep't January 16, 2024)

Here is the decision.

Contract law.

Where a defendant-seller is the party moving for summary judgment dismissing a cause of action for specific performance of a contract for the sale of real property, he has the burden of demonstrating the absence of a triable issue of fact regarding whether the plaintiff buyer was ready, willing, and able to close. In addition, the defendant-seller must demonstrate, prima facie, that the plaintiff buyer was in default.

534 Flatbush Holdings, LLC v. Solaris Props., LLC, NY Slip Op 00207 (2d Dep't January 15, 2024)

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Appellate practice.

The Appellate Division has no discretionary authority to reach an unpreserved issue in the interest of justice in an article 78 proceeding challenging an administrative determination.

Matter of Tsevilsky v. New York State Div. of Hous. & Community Renewal, NY Slip Op 00282 (1st Dep't January 16, 2024)

Here is the decision.