Motions to dismiss.

Pursuant to CPLR 3211(a)(2), a party may move to dismiss a cause of action on the ground that the court lacks subject matter jurisdiction. The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is a substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs.  However, civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution. Here, the defendants failed to demonstrate that the causes of action alleging negligence and negligent hiring, retention, and supervision insofar as asserted against them cannot be determined solely upon the application of neutral principles of law, without reference to religious principles.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Pursuant to CPLR 3211(a)(1), dismissal is warranted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Escobar v. Segunda Iglesia Pentecostal Juan 3:16 Asamblea de Dios, NY Slip Op 05583 (2d Dep't November 13, 2024)

Here is the decision.

Extension of time to file a note of issue.

The motion court providently exercised its discretion in denying defendant's motion for a further extension of the deadline for filing the note of issue, taking into account the length of time the action had been pending, the multiple extensions that had already been granted, and the need to avoid undue delay. Notably, after the Appellate Division granted the parties an additional 60 days to complete discovery, the motion court granted another extension of about five months to complete discovery and file the note of issue. Although the motion court's order marked that deadline as "final" and stated that no further extensions would be granted without a showing that "formal efforts" had been made to compel outstanding discovery from third parties, defendant canceled a scheduled deposition of third-party witnesses and did not move to compel discovery from them.

As to the motion to vacate the note of issue, defendant failed to show that any unusual or unanticipated circumstances requiring additional discovery developed after the filing of the note of issue, pursuant to 22 NYCRR 202.21[d].

361 Broadway Assoc. Holdings, LLC v. Foundations Group I, Inc., NY Slip Op 05550 (1st Dep't November 12, 2024)

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Licensing agreements.

Licensing agreements that provide for stipulated guaranteed minimum royalty payments that accelerate on breach are enforceable as written and for the amount set forth, without regard to mitigation, setoff, or other post-breach developments.

AL Infinity LLC v Innovative Concepts & Design, LLC, NY Slip Op 05475 (1st Dep't November 7, 2024)

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Foreclosure actions.

Pursuant to RPAPL 1311 (1) the necessary defendants to a foreclosure action are "[e]very person having an estate or interest in possession, or otherwise, in the property as tenant in fee, for life, by the curtesy, or for years, and every person entitled to the reversion, remainder, or inheritance of the real property, or of any interest therein or undivided share thereof, after the determination of a particular estate therein." Where a property owner dies intestate, title to real property is automatically vested in the decedent's distributees.

Wilmington Sav. Fund Socy. v. Jsang Kei Lau, NY Slip Op 05504 (1st Dep't November 6, 2024)

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A vehicle owner's vicarious liability.

Vehicle and Traffic Law § 388(1) provides that, with the exception of commercial lessors of motor vehicles, which are exempt from vicarious liability under federal law, the owner of a motor vehicle is liable for the negligence of one who operates the vehicle with the owner's express or implied consent. The statute creates a presumption that the driver was using the vehicle with the owner's express or implied permission, which may be rebutted only by substantial evidence sufficient to show that the vehicle was not operated with the owner's consent.  Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use. However, the uncontradicted testimony of a vehicle owner or a vehicle owner's employee that a vehicle was operated without the owner's permission does not, by itself, overcome the statutory presumption of permissive use.

Dombalic v. Cornelius, NY Slip Op 05434 (2d Dep't November 6, 2024)

Here is the decision.

Service of process.

Defendant's motion to dismiss the complaint for lack of personal jurisdiction is denied. Plaintiff landlord's properly executed affidavit of service constituted prima facie evidence of proper service of the summons and complaint upon defendant-lease guarantor. The affidavit of service attests to attempted personal service upon defendant on three separate dates and times at a nightclub business address that defendant designated for notice purposes in connection with his execution of the lease guaranty. On the fourth service attempt, the process server resorted to affix and mail service, pursuant to CPLR 308[4].

Defendant argues that because of the Covid lockdown and the nightclub's temporary closure, the nightclub address could no longer be deemed his actual place of business, and that service at that location did not afford him with reasonable notice of the action against him for purposes of acquiring personal jurisdiction. However, because defendant designated the nightclub address as his business address for notice purposes under the guaranty, he may not now reasonably claim he was not properly served. In addition, defendant had a contractual duty under the guaranty to keep the landlord apprised of a current address for receipt of notices in connection with the guaranty, and he never changed the address.

Accordingly, defendant's mere denial of receipt of process fails to rebut the presumption of proper service created by the affidavit of service.

Amcojor Realty Corp. v. Butter Mgt. LLC, NY Slip Op 05476 (1st Dep't November 7, 2024)

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Striking a pleading.

The drastic remedy of striking a pleading is not warranted where the motion court does not find a long-standing pattern of willful or contumacious failure to comply with discovery demands or orders, pursuant to CPLR 3126.

Farrell Limousine Serv. LLC v. Macro Consultants, LLC, NY Slip Op 05402 (1st Dep't October 31, 2024)

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Appellate practice.

The plaintiff contends that the submissions of the building defendants and the purchaser defendants were insufficient to demonstrate that the building defendants complied with various notice requirements prior to the auction transferring the plaintiff's proprietary lease and shares of stock in the subject apartment. This contention, however, was not raised in opposition to the separate motions of the building defendants and the purchaser defendants. Instead, the plaintiff improperly raised this contention for the first time on appeal, and, therefore, it is not properly before the Appellate Division.

Cobb v. 1710 Carroll Owners Corp., NY Slip Op 05324 (2d Dep't October 20, 2024)

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Contract law.

Defendant's motion for summary judgment with respect to plaintiff's breach of contract cause of action is denied, as plaintiff sufficiently raised issues of fact with respect to damages. In discovery, plaintiff provided interrogatory responses and produced admissible documentary and testimonial evidence regarding the contract price, plaintiff's estimated costs of performance, and defendant's non-payment. In addition plaintiff's director of business development, testified at deposition that the proffered documents were generated in the ordinary course of business, and he gave details regarding the project costs contained in the documents. Since the parties entered into a fixed-price construction contract where defendant allegedly prevented performance, plaintiff adequately proffered evidence raising a factual issue about damages.

Adler Windows, Inc. v. Freidheim, NY Slip Op 05396 (1st Dep't October 31, 2024)

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Court holiday.

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. That section imposes a non-delegable duty on a property owner to maintain and repair the sidewalk abutting its property. Generally, the issue of whether a dangerous or defective condition exists on a property depends on the facts of each case and is a question of fact for the jury. However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub a toe, or trip.  In other words, if a defect is so slight that no careful or prudent person would reasonably anticipate any danger from it, and yet an accident occurs that is traceable to the defect, there is no liability. A defendant seeking dismissal of a complaint on the basis that an alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact. There is no minimal dimension test or per se rule that the condition must be of a certain height or depth in order to be actionable. Instead, in determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect along with the time, place, and circumstance of the injury. This analysis may include consideration of the weather and lighting conditions in the area, the plaintiff's familiarity therewith, the extent to which the area may have been crowded, and whether the alleged defect was otherwise obscured or concealed at the time of the accident. Photographs that are acknowledged to fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable.

Brothers v. Nisan Maintenance Corp., NY Slip Op 05323 (2d Dep't October 30, 2024)

Here is the decision.