Premises liability.

Liability may attach to an out-of-possession landowner who has affirmatively created a dangerous condition or defect. However, here plaintiff provided nothing more than conjecture concerning allegedly improper building construction. She presented no evidence that any code or regulation was violated by the building's construction or design, that any violations were issued based on improper drainage, or that there were any prior accidents or complaints of water or ice accumulation in the parking area. Moreover, the fact witness who made these claims had no demonstrated expertise in this area, which is not within the ambit of common experience. The complaint is dismissed.

Maignan v. Watsky & Damm, Inc., NY Slip Op 00398 (1st Dep't January 28, 2025)

Here is the decision.

Contract law.

The lease provides for attorneys' fees regardless of default or merit, in a dispute between a residential co-op and a shareholder tenant. This provision is unenforceable as unconscionable. Enforcing such a provision would produce an unjust result because it would dissuade aggrieved parties from pursuing litigation and preclude tenant-shareholders from making meaningful decisions about how to vindicate their rights in legitimate instances of landlord default.

Kasowitz, Benson, Torres & Friedman, LLP v. JPMorgan Chase Bank, N.A., NY Slip Op 00396 (1st Dep't January 28,. 2024)

Here is the decision.

Court holiday.

Freedom of Information Law (FOIL).

In order to promote open government and public accountability, FOIL imposes a broad duty on government to make its records available to the public. To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted,

Here, the Appellate Division determined that the Supreme Court erred in dismissing this proceeding on the basis that it was rendered academic by the dismissal of a separate CPLR article 78 proceeding in which the petitioner was one of the parties seeking to annul an agency determination. FOIL does not require that the party requesting records make any showing of need, good faith, or legitimate purpose. The underlying premise is that the public is vested with an inherent right to know and that official secrecy is antithetical to our form of government. The standing of one who seeks access to records under FOIL is as a member of the public, and is neither enhanced nor restricted because the person also is a litigant or a potential litigant.

FOIL exemptions are construed narrowly, and an agency has the burden of demonstrating that an exemption applies by articulating a particularized and specific justification for denying access. When relying upon an exemption, it is the agency's burden to demonstrate that the requested material falls squarely within a FOIL exemption. In order to meet its burden, the party seeking exemption must present specific, persuasive evidence that the material falls within the exemption. Conclusory assertions that are not supported by any facts are insufficient.

Matter of Supinsky v. Town of Huntington, NY Slip Op 00324 (2d Dep't January 22, 2024)

Here is the decision.

Striking an errata sheet.

Defendant's motion to strike plaintiff's errata sheet is granted. Plaintiff's proffered corrections are critical, substantive changes that may materially alter plaintiff's original deposition testimony as to the basis for defendant's alleged negligence, specifically, liquid on the floor causing plaintiff to slip.

Moore-Reason v. Manhattan Coll., NY Slip Op 00403 (1st Dep't January 28, 2024) 

Here is the decision.

Appellate practice.

The order at issue is an evidentiary ruling from which there is no intermediate appeal. In addition, since the initial briefing on the appeal, a final judgment has been entered, which moots the appeal from this intermediate order.

Moghtaderi v. Apis Capital Advisors, LLC, NY Slip Op 00402 (1st Dep't January 28, 2024)

Here is the decision.

Fraud claims.

The elements of a cause of action for fraud are a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages. Where a fraud cause of action is based on an omission or concealment of material fact, the plaintiff must also allege that the defendant had a duty to disclose material information and failed to do so. The elements of a cause of action to recover for constructive fraud are the same as those to recover for actual fraud, with the crucial exception that the element of the defendant's knowledge of the falsity of his representation is replaced by the plaintiff's proving the existence of a fiduciary or confidential relationship warranting the trusting party to repose his confidence in the defendant, and, therefore, to relax the care and vigilance that he would otherwise exercise. A cause of action sounding in fraud must be pleaded with particularity, pursuant to CPLR 3016(b). CPLR 3016(b) is satisfied when the facts suffice to permit a reasonable inference of the alleged misconduct.

Ofman v. Richland, NY Slip Op 00327 (2d Dep't January 22, 2024)

Here is the decision.

Failure to state a claim.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Where the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery, dismissal of the cause of action is warranted. Claims consisting of bare legal conclusions with no factual specificity are insufficient to survive a motion to dismiss.

Pinkesz v. Massachusetts Mut. Life Ins. Co., NY Slip Op 00343 (2d Dep't January 22, 2024)

Here is the decision.

Contract law.

The Appellate Division found that Supreme Court properly granted the property owner summary judgment on its cause of action for breach of contract. The owner established that the property manager breached its obligations under the parties' management agreement by failing to take steps that would have prevented commercial tenants from receiving electricity at the owner's expense for a period of multiple years in violation of their leases. The agreement's limitation of liability clause, on which the property manager relies, provides that the property manager "shall not be liable to the owner for any loss or damage not caused primarily by the [property manager's] own negligence orfailure to comply with its obligations hereunder." Strictly construing the clause against the property manager, which is the party seeking to avoid liability, the terms of the limited liability clause do not protect it because its own breach of the management agreement was a direct and primary cause of the owner's losses, which would not have occurred but for the property manager's failure to fulfill its contractual obligations.

Furthermore, the property manager did not submit evidence sufficient to warrant dismissal based on the affirmative defense of failure to mitigate damages, as that defense does not preclude the grant of summary judgment to the owner on the issue of liability.

Fourth Ave. Owners Corp. v. Douglas Elliman Prop. Mgt., NY Slip Op 00375 (1st Dep't January 23, 2024)

Here is the decision.

Vacatur after one year.

Even after expiration of the one-year limitations period set forth in CPLR 5015, a court may vacate its own order or judgment for sufficient reason and in the interest of substantial justice. There is no basis for an extension of the one-year period where the party seeking the extension fails to demonstrate a reasonable excuse for a lengthy delay in moving to vacate the order or judgment.

U.S. Bank N.A. v. Tait, NY Slip Op 00344 (2d Dep't January 22, 2024)

Here is the decision.

Premises liability.

Under the storm-in-progress doctrine, a property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter.

Wechsler v. Ave. L, LLC, NY Slip Op 00347 (2d Dep't January 22, 2024) 

Here is the decision.