The writ lies only to enforce a clear legal right where a public official has failed to perform a duty that is enjoined by law. It will not be awarded in order to compel an act in respect to which the official may exercise judgment or discretion.
Matter of Martinez v. DiFiore, NY Slip Op 06958 (1st Dep't November 24, 2020)
The court properly considered some of the medical records submitted in opposition to plaintiff's motion, in which plaintiff also provided inconsistent accounts of how the accident occurred. Even assuming that the descriptions of the accident contained in plaintiff's medical records were not germane to his treatment and diagnosis, the entries in at least three of the records were directly attributable to plaintiff so as to constitute admissions. Even assuming that these entries constituted hearsay, they may be submitted in opposition to plaintiff's motion and properly considered in conjunction with the other evidence in the record, which provided different descriptions of the accident.
Pina v. Arthur Clinton Hous. Dev. Fund Corp., NY Slip Op 06968 (1st Dep't November 24, 2020)
The doctrine holds that, absent a fiduciary relationship between parties, there is a duty to disclose when one party's superior knowledge of essential facts renders a transaction, without disclosure, inherently unfair. The essential facts must not have been discoverable through the exercise of ordinary intelligence. Here, there are triable issues regarding whether defendant had a duty to disclose that it had granted an exclusive license to another company.
Sports Tech. Applications, Inc. v. MLB Advanced Media, L.P., NY Slip Op 06973 (1st Dep't November 24, 2020)
The claim is sufficiently stated where the allegations indicate that the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement.
106 Spring St. Owner LLC v. Workspace, Inc., NY Slip Op 06942 (1st Dep't November 24, 2020)
The Appellate Division unanimously affirmed the Order which denied plaintiff's motion for a default judgment. As it is undisputed that plaintiff did not make a reasonable attempt to personally serve defendants, in accordance with CPLR 308, service was improper. Because jurisdiction was not obtained over defendants, they were not required, in response to plaintiff's motion for a default judgment, to demonstrate a reasonable excuse for their default in answering the complaint, or a meritorious defense.
Matter of Petre v. Lucia, NY Slip Op 06873 (1st Dep't November 19, 2020)
Plaintiff was entitled to summary judgment, as it submitted documentary evidence showing that defendant had received and retained the invoices without objection. Defendant's own written statements refute his argument that plaintiff was unauthorized to represent him, and that, when he terminated plaintiff, he had had objected to plaintiff's work. The termination, which occurred prior to defendant's receipt of the invoices, was rescinded by defendant shortly thereafter. Despite regular correspondence between plaintiff and defendant during the following months, there is no indication that he objected to plaintiff's invoices or continued representation. The legal malpractice counterclaims are not sufficiently intertwined with the account stated claim so as to preclude summary judgment.
Schlam Stone & Dolan LLP v. Toussie, NY Slip Op 06874 (1st Dep't November 19, 2020)
As the individual defendant signed the original agreement in his corporate capacity, on behalf of the corporate defendant, he ordinarily would not be personally liable under the agreement. However, his signature without reference to his corporate capacity in the extension of the original agreement creates a fact issue as to the capacity in which he signed each agreement, as well as a fact issue as to whether the corporate defendant is liable under the agreements.
Inbar Group, Inc. v. St. Mark's World, Inc., NY Slip Op 06879 (1st Dep't November 19, 2020)
The landowner owes a duty to maintain the property in a reasonably safe condition. The duty is premised on the landowner's exercise of control over the property, as the person in possession and control of[the property is best able to identify and prevent any harm to others. It has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property. A landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property.
Augustine v. City of New York, NY Slip Op 06739 (2d Dep't November 18, 2020)
Petitioner's facial challenge to Social Services Law § 143-b cannot be considered, as it has not submitted proof that it served the Attorney General with the requisite notice of a challenge to the law's constitutionality, pursuant to CPLR 1012[b][3].
Matter of 20 W. Props. LLC v. Banks, NY Slip Op 06840 (1st Dep't November 19 2020)
Pursuant to the doctrine, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally, and those risks that flow from such participation. The doctrine encompasses risks involving less than optimal conditions on an irregular playing surface.
V.A. v. City of New York, NY Slip Op 06736 (2d Dep't November 18, 2020)
