Amending a pleading.

The motion court denied defendant's request to amend its answer, made for the first time as a footnote in its motion reply papers. A court may grant a request to amend a pleading without a formal motion where the amendment is not futile and will not result in prejudice to any party. The court found prejudice because the amendment would be made at the end of discovery.

Bloom v. Helmsley Spear, LLC, NY Slip Op 01999 (1st Dep't April 3, 2025)

Here is the decision.

Mandamus.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there is a clear legal right to the relief sought.

Matter of Lubrano v. Clarke, NY Slip Op 01809 (2d Dep't March 26, 2025)

Here is the decision.

Spoliation.

The court exercised its discretion and declined to strike the City's answer and to direct an adverse inference charge since the missing video was neither the sole source of information about the incident in which plaintiff was injured nor the sole means by which she can establish her case. Moreover, plaintiff did not show that the missing video was intentionally destroyed or that records beneficial to the City's defense were selectively preserved. Plaintiff's testimony and the conflicting accounts of the incident in the reports prepared by Department of Corrections employees are sufficient to enable the jury to properly evaluate credibility. Nevertheless, permitting the City's witnesses to testify to the contents of the missing tape would provide it with a tactical advantage from the spoliation. Accordingly, defendant is precluded from presenting evidence concerning the contents of the missing tape.

Tittel v. City of New York, NY Slip Op 09102 (1st Dep't April 1, 2025)

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Appellate practice.

Supreme Court properly denied defendant's motion to vacate the order granting a default judgment. Defendant appealed the order granting the motion for a default judgment, but then abandoned that appeal. Therefore, the order was deemed affirmed, and Supreme Court was bound by the doctrine of the law of the case. Furthermore, issues that could have been raised on the abandoned appeal may not be reviewed on this appeal.

D. Penguin Bros. Ltd. v. City Natl. Bank, NY Slip Op 01863 (1st Dep't March 27, 2025)

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Employment Law.

A cause of action for negligent hiring, retention, or supervision requires a showing that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and that there is a connection between the negligence and the injury. The employer's negligence lies in its having placed the employee in a position to cause foreseeable harm which most probably would not have occurred had the employer taken reasonable care in making decisions regarding the employee's hiring, retention, or supervision.

Schlesinger v. Sisters of the Order of St. Dominic, NY Slip Op 01831 (2d Dep't March 26, 2025)

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Discovery law.

The admissibility of evidence has no bearing on whether the requested information is discoverable.

J.L. v. Archdiocese of N.Y., NY Slip Op 01771 (1st Dep't March 25, 2025)

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Leave to file a late notice of claim.

Leave is granted where the record shows that the defendant had actual knowledge of the essential underlying facts of its employee's involvement in the accident, the police report, and the accident information exchange form. Petitioner sustained his burden of showing that defendants would not be substantially prejudiced in maintaining a defense on the merits. Any alleged prejudice is undermined by defendants'' contemporaneous investigation, including taking photos of the location as it was at the time of the accident. Defendants' conclusory assertion of prejudice resulting from the 11-month delay in serving the notice of claim is insufficient because they do not assert that the bus operator or the supervisor who investigated the accident are unavailable.

Matter of Williams v. New York City Tr. Auth., NY Slip Op 01782 (1st Dep't March 25, 2025)

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Appellate practice.

After a nonjury trial, the Appellate Division's power to review the evidence is as broad as the trial court's. The Appellate Division may render a judgment it finds warranted by the facts, giving due regard to the fact that the trial court was able to assess witness credibility.

Sklavonitis v. State of New York, NY Slip Op 01662 (2d Dep't March 19, 2025)

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Foreclosure sales.

A court may exercise its inherent equitable power to ensure that a sale conducted pursuant to a judgment of foreclosure and sale is not made the instrument of injustice. The court may set aside a foreclosure sale where fraud, collusion, mistake, or misconduct casts suspicion on the fairness of the sale.

U.S. Bank, N.A. v. Singh, NY Slip Op 01664 (2d Dep't March 19, 2025)

Here is the decision.

Leave to intervene.

"Upon 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," pursuant to CPLR 1012[a][3].  A timely motion for leave to intervene will be granted when the intervenor has a real and substantial interest in the outcome of the proceedings.

Windward Bora, LLC v. Home Funds Direct, NY Slip Op 01667 (2d Dep't March 19, 2025)

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Contractual time-bars.

The court will enforce a contractual provision setting the time within which an action must be commenced.

Spectrum Inc. Gen. Contr. v. Capital One Bank USA, N.A., NY Slip Op 01725 (1st Dep't March 20, 2025)

Here is the decision.