Intervention.

Pursuant to CPLR 1012(a)(3), "[u]pon timely motion, any person shall be permitted to intervene in any action . . . when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment." Additionally, the court, in its discretion, may permit a person to intervene when the person's claim or defense and the main action have a common question of law or fact. Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance, since intervention should be permitted where the intervenor has a real and substantial interest in the outcome of the proceedings.

Al-Rowmeim v. Alazwear, NY Slip Op 06020 (2d Dep't December 4, 2024)

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Failure to move for leave to intervene constitutes a waiver of any right to participate in the litigation.

Bank of Am., N.A. v. Burton, NY Slip Op 06022 (2d Dep't December 4, 2024)

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Contract law.

Defendant demonstrated that money damages are barred by a provision of the parties' commercial lease, which limits plaintiffs' damages, if any, to specific performance, injunction, or declaratory relief. Plaintiff's argument that the provision is unenforceable as against public policy is unavailing. The complaint does not allege that defendant engaged in misconduct that would constitute a willful, bad-faith breach of the lease rendering the provision unenforceable. Instead, the complaint alleges that defendant declined to reopen its business after New York State's COVID-19 in-person dining restrictions were lifted. This decision does not constitute intentional wrongdoing unrelated to any legitimate economic self-interest which would be required to find the provision unenforceable.

2M Hospitality Group, LLC v. Sahara Plaza, LLC, NY Slip Op 06003 (1st Dep't December 3, 2024)

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Liability for 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. Administrative Code § 7-210(a) imposes a duty upon owners to maintain the sidewalk abutting their property in a reasonably safe condition. On a motion for summary judgment, a defendant property owner is required to do more than simply demonstrate that the alleged defect was on another landowner's property. The property owner must establish that it maintained the portion of the sidewalk abutting its own property in a reasonably safe condition or that any failure to do so was not a proximate cause of the plaintiff's injuries.

Santiago v. 527 Grand, LLC, NY Slip Op 05999 (2d Dep't November 27, 2024)

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Discovery.

Pursuant to CPLR 3101(a), "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The words "material and necessary" must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. However, a party is not entitled to unlimited, uncontrolled, and unfettered disclosure. The essential test is usefulness and reason. It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims. Unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy. The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are matters within the sound discretion of the trial court.

Smith-Percival v. MTA Bus Co., NY Slip Op 06000 (2d Dep't November 27, 2024)

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The Dead Man's Statute.

Pursuant to CPLR 4519, "[u]pon the trial of an action . . . , a party or a person interested in the event . . . shall not be examined as a witness in his own behalf or interest . . . against the executor, administrator or survivor of a deceased person or the committee of a person with a mental illness . . . concerning a personal transaction or communication between the witness and the deceased person or person with a mental illness, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the person with a mental illness or deceased person is given in evidence, concerning the same transaction or communication." Generally, evidence that would be inadmissible at trial under the Dead Man's Statute may not be relied upon to establish a prima facie entitlement to judgment as a matter of law.

As parties to this medical malpractice action, the two individual defendants are thereby interested in the outcome of this action. Consequently, their deposition testimony and affidavits that were largely based on their communications with the decedent could not be considered as evidence in support of the defendants' motion for summary judgment. However, the deposition testimony of the registered nurse, who rendered certain care and spoke to the decedent, was admissible, as the nurse is not an interested party within the meaning of the Dead Man's Statute.

Weber v. Sharma, NY Slip Op 06001 (2d Dep't November 27, 2024)

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December 7, 1941

An action to foreclose a mortgage.

An action to foreclose a mortgage is subject to a six-year statute of limitations, pursuant to CPLR 213[4]. Even if the mortgage is payable in installments, once a noteholder elects to accelerate the debt, the entire amount is due and the statute of limitations begins to run on the entire deb. In order to be valid, an election to accelerate must be made by an unequivocal overt act that discloses the noteholder's choice, such as the filing of a verified complaint seeking foreclosure and containing a sworn statement that the noteholder is demanding repayment of the entire outstanding debt. Here, the fact that the decedent died prior to commencement of the foreclosure action did not revoke or invalidate, or otherwise destroy, the express invocation of the contractual election to accelerate the debt.

Wilmington Sav. Fund Socy., FSB v. Burgress, NY Slip Op 06002 (2d Dep't November 27, 2024)

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The admissibility of expert opinions.

Defendants' motion to exclude the opinions by plaintiffs' general causation experts is granted, as plaintiffs failed to sustain their burden of showing that their experts' theory of causation is generally accepted in the relevant scientific community.

Wholey v. Amgen, Inc., NY Slip Op 05910 (1st Dep't November 26, 2024)

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Defamation.

The elements of a cause of action for defamation are: (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published to a third party without privilege or authorization, (3) amounting to fault as judged by a negligence standard, and (4) either causing special harm or constituting defamation per se. CPLR 3016(a) provides that, "[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint."  Compliance with CPLR 3016(a) is strictly enforced.

Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action. Accordingly, an expression of pure opinion is not actionable, no matter how vituperative or unreasonable it may be. In distinguishing between statements of fact and those of pure opinion, it is necessary to consider the writing as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff.

Tsamasiros v. Jones, NY Slip Op 05814 (2d Dep't November 20, 2024)

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Medical malpractice and punitive damages.

Punitive damages are recoverable in a medical malpractice action only where the defendant's conduct evinces a high degree of moral culpability or willful or wanton negligence or recklessness. The plaintiff may recover punitive damages for a medical professional's act of altering or destroying medical records in an effort to evade potential medical malpractice liability.

Woehrle v. Buono, NY Slip Op 05815 (2d Dep''t November 20, 2024)

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Appellate practice.

The trial transcript is a necessary element of an appellate record, pursuant to CPLR 5526. Here, defendant's failure to include the trial transcript in the record on appeal requires dismissal of the appeal.

Lewis v. Thomas, NY Slip Op 05832 (1st Dep't November 21, 2024)

Here is the decision.