A motion to punish a party for civil contempt.

Practice point:  Granting the motion requires a finding that (1) there was a court's lawful order, clearly expressing an unequivocal mandate; (2) the party against whom contempt is sought disobeyed the order; (3) the disobedient party had knowledge of the order and its terms; and (4) the movant was prejudiced by the non-movant's offending conduct.  It is not necessary that the disobedience be deliberate or willful; regardless of motive, the mere act of disobedience is sufficient if it defeats, impairs, impedes, or prejudices the rights or remedies of a party.

Student note:  The motion is addressed to the court's sound discretion, and the movant bears the burden of proving the contempt by clear and convincing evidence.

P.B. #7, LLC v 231 Fourth Ave. Lyceum, LLC, NY Slip Op 08945 (2d Dep't December 26, 2018)

Here is the decision.

Hearsay on a summary judgment motion.

Practice point:  Hearsay, without more, is insufficient to defeat the motion.

Student note:  A declaration against interest is not an exception to the hearsay rule if the declarant was unaware of the adverse nature of the statement.

Nava-Juarez v. Mosholu Fieldston Realty, LLC, NY Slip Op 08744 (1st Dep't December 20, 2018)

Here is the decision.

A claim of aiding and abetting fraud.

Practice point:  The plaintiff must allege the underlying fraud, actual knowledge, and substantial assistance. Actual knowledge may be pled generally.

Student note:  As to alleging the underlying fraud, the elements are the misrepresentation or material omission of a fact which was false and which the defendant knew to be false, made for the purpose of inducing the other party's reliance on it; the other party's justifiable reliance on the misrepresentation or material omission; and injury.

William Doyle Galleries, Inc. v. Stettner, NY Slip Op 08743 (1st Dep't December 20, 2018)

Here is the decision.

CPLR 5015(a).

Practice point:  Pursuant to CPLR 5015(a), a court may vacate a default judgment or order on the grounds of excusable neglect, newly-discovered evidence, an adverse party's fraud, misrepresentation, or other misconduct, or the lack of jurisdiction, or on the reversal, modification, or vacatur of a prior order.

Student note:  The statute's listing is not exhaustive, and a court may vacate its own judgment or order for sufficient reason and in the interests of substantial justice.

Nationstar Mtge., LLC v. Russo, NY Sip Op 08668 (2d Dep't December 19, 2018)

Here is the decision.

A dismissed claim of libel per se.

Practice point:  At issue are the defendant's statements to former colleagues at the law firm which had terminated him. The defendant's statement that the plaintiff, who is the firm's principal, is "really nothing more than a common criminal" is a nonactionable statement of opinion. The statement has an imprecise meaning, and it cannot be proven true or false. In context, no reasonable reader would understand the statement as an accusation that the plaintiff had ever been charged with, or convicted of, a crime.

Caradli v. Slater, NY Slip Op 08544 (1st Dep't December 13, 2018)

Here is the decision.

Opposing summary judgment.

Practice point: The opposing party need only raise an issue of fact, and, as to that fact, the court may not apply the burden of proof that will be applicable at trial.

Ostad v. Nehmadi, NY Slip Op 08563 (1st Dep't December 13, 2018)

Here is the decision.

Option contracts.

Practice point:  An option contract is an agreement, for consideration, to hold open an offer, with the right to purchase at a later date.  If the agreement sets no time limit for performance, the court will decide on a reasonable time, considering factors such as the agreement's nature and object; the parties' previous dealings and their experience; whether there is good faith; the possibility of prejudice or hardship to either party; and, if specified, the number of days provided for performance.

Student note:  On a motion to dismiss for failure to state a cause of action, a court may reach the merits of a properly pleaded claim for a declaratory judgment where there are no questions of fact.

Breslin v. Frankel, NY Slip Op 08456 (2d Dep't December 12, 2018)

Here is the decision.

Statute of frauds.

Practice point:  Agreements between persons cohabiting together are not, per se, required to be in writing.

Student note:  Pursuant to CPLR 3211(a)(5), a party may move for dismissal on the ground that the cause of action may not be maintained because of the statute of frauds.

Baron v. Suissa, NY Slip Op 08453 (2d Dep't December 12, 2018)

Here is the decision.

Vacating a default.

Practice point:  Law office failure is not a reasonable excuse for the default where there is a pattern of the attorney's intentional failures.

Spivey v. City of New York, NY Slip Op 08557 (1st Dep't December 13, 2018)

Here is the decision.

Tomorrow's issue:  Statute of frauds.

Improper rent registration.

Practice point:  Pursuant to Rent Stabilization Code § 2528.4, an owner who filed an improper rent registration is barred from collecting rent in excess of the base-date rent. If the increases were otherwise legal, the owner is retroactively relieved of the penalty upon the filing of a proper registration.

Nolte v. Bridgestone Assoc. LLC, NY Slip Op 08571 (1st Dep't December 13, 2018)

Here is the decision.

Monday's issue:  Vacating a default.

Discovery after filing a note of issue.

Practice point:  On a showing of unusual or unanticipated circumstances that developed after the filing of the note of issue, additional discovery may be ordered, pursuant to 22 NYCRR 202.21[d].

Palmiero v 417 E. 9th St. Assoc., LLC, NY Slip Op 08449 (1st Dep't December 11, 2018)

Here is the decision.

Causality in an employment action.

Practice point:  Temporal proximity between a plaintiff's complaints to the employer about racial stereotyping and discrimination and the termination of employment is sufficient to raise an inference of a causal connection between the plaintiff's protected activity and the adverse employment action.

Cook v. EmblenHealth Servs. Co., LLC, NY Slip 08433 (1st Dep't December 11, 2018)

Here is the decision.

CPLR 3216 and 90-day demands.

Practice point:  After having been served with the demand, pursuant to 3216(b), a plaintiff must timely file a note of issue or move to vacate the demand or to extend the 90-day period. Vacatur of a default requires a reasonable excuse and a potentially meritorious cause of action.

Student note:  CPLR 3216  authorizes, but does not require, dismissal of an action based on the plaintiff's unreasonable neglect to proceed.

Angamarca v. 47-51 Bridge St. Prop., LLC, NY Slip 08273 (2d Dep't December 5, 2018)

Here is the decision.

A defense of unconscionability.

Practice point:  The defense requires a showing that the defendant did not have a meaningful choice in entering into the agreement. and that the agreement's terms were unreasonably favorable to the plaintiff.

Cash4Cases, Inc. v. Brunetti, NY Slip Op 08360 (1st Dep't December 6, 2018)

Here is the decision.

The Court of Claims Act.

Practice point:  For purposes of the statute, a claim accrues when damages are reasonably ascertainable.

Student note:  Compliance with the filing deadlines set forth in § 10 is jurisdictional, and the deadlines must be strictly construed.

Mills v. City Univ. of N.Y., NY Slip Op 08355 (1st Dep't December 6, 2018)

Here is the decision.

Easements by grant and prescription.

Practice point:  An easement by grant is construed to give effect to the parties' intent, as manifested by the grant's language. For an easement by prescription, the standard is clear and convincing proof of the adverse, open and notorious, continuous, and uninterrupted use of the property for the prescriptive period.

Student note:  Where the easement provides for the ingress and egress of motor vehicles, it extends to any reasonable use necessary and convenient for the purpose for which it is created.

DiDonato v. Dyckman, NY Slip Op 08113 (2d Dep't November 28, 2018)

Here is the decision.

Equitable remedies.

Practice point:  The court may issue a permanent injunction even if the parties' agreement does not specify it as a remedy.

Student note:  A complete bar to equitable relief requires explicit contractual language, such as a provision that liquidated damages will be the sole and exclusive remedy.

Nelson v. Rosenkranz, NY Slip Op 08177 (1st Dep't November 29, 2018)

Here is the decision.

The right to a trial by jury.

Practice point:  The guarantee to a right to a trial by jury under the Seventh Amendment to the United States Constitution differs from the protections afforded the right to a jury trial in civil cases in New York.

Student note:  The Seventh Amendment is not applicable to cases tried in state courts.

Marko v. Korf, NY Slip Op 08089 (1st Dep't November 27, 2018)

Here is the decision.

Moot questions.

Practice point:  Courts may not pass on academic, hypothetical, or otherwise abstract questions that have no practical effect on the parties.

Student note:  As a matter of jurisdiction, a court's power to declare the law derives from, and is limited to, determining issues relating to persons who are rightly parties in a particular case.

Berger v. Prospect Park Residence, LLC, NY Slip Op 08110 (2d Dep't November 28, 2018)

Here is the decision.

Service of process.

Practice point:  An affidavit of service is prima facie evidence that the defendant was properly served with the summons and complaint, pursuant to CPLR 308(2).  In order to rebut the prima facie showing, the defendant must submit a sworn, nonconclusory denial of service, or swear to specific facts to rebut the statements in the process server's affidavit.

Student note:  A defendant's mere assertion that he was never served is insufficient to rebut the presumption  of proper service.

JP Morgan Chase Bank v. Dennis, NY Slip Op 08070 (1st Dep't November 27, 2018)

Here is the decision.

Expert opinons.

Practice point:  The opinion is without probative value if it is based on purported facts that are flatly contradicted by the evidence of record.

Holmes v. New York City Tr. Auth., NY Slip Op 08069 (1st Dep't November 27, 2018)

Here is the decision

Immunity from service of process.

Practice point:  Nondomiciliaries are immune from civil process when they voluntarily appear in New York to participate in any legal proceeding.

Student note: For immunity to attach, there must be no available means of acquiring jurisdiction over the person other than personal service in New York.

Sandella v. Hill, NY Slip Op 08051 (2d Dep't November 21, 2018)

Here is the decision.

Motions to consolidate.

Practice point:  The motion will be granted where the actions arise from the same transaction, concern the same parties, and involve common questions of law and fact.

Student note:  Consolidation is appropriate where it will avoid unnecessary duplication of trials; save unnecessary costs and expense; and prevent any injustice which would result from divergent decisions based on the same set of facts. The motion, which is left to the sound discretion of the trial court, should be granted absent a showing of prejudice to the non-movant, pursuant to CPLR 602(a).

Rhoe v. Reid, NY Slip Op 08049 (2d Dep't November 21, 2018)

Here is the decision.

Transfer of title to a motor vehicle.

Practice point:  The title is transferred when the parties intend the transfer to occur.

Bunn v. City of New York, NY Slip Op 07936 (1st Dep't November 20, 2018)

Here is the decision.

A dismissed fraud claim.

Practice point:  The claim will be dismissed as duplicative of the contract claim if it does not allege that the defendant breached a duty other than the contractual duty, but merely restates the contract claim in terms of fraud and misrepresentation.

FJ Vulis, LLC v. Val, NY Slip Op 07835 (1st Dep't November 15, 2018)

Here is the decision.

General Municipal Law § 50-e.

Practice point:  Where malpractice is apparent from an independent review of the medical records, those records constitute actual notice of the pertinent facts of the claim.

Student note:  Pursuant to the statute, a party seeking to sue a public corporation must serve a notice of claim on the prospective defendant within ninety days after the claim arises.

Ballantine v. Pine Plains Hose Co., Inc., NY Slip Op 07697 (2d Dep't November 14, 2018)

Here is the decision.

Court holiday.

Preemptions by federal law.

Practice point:  Federal law preempts State claims that require the interpretation of a collective bargaining agreement.

Student note:  When the Appellate Division affirms on preemption grounds, it need not reach any of the other issues raised in the parties' briefs.

Matter of McLane v. AT&T, Inc., NY Slip Op 07686 (1st Dep't November 13, 2018)

Here is the decision.

Insufficient allegations of fraud.

Practice point:  Allegations pled on information and belief are not sufficient to establish the necessary quantum of proof to sustain a claim of fraud.

Weinberg v. Kaminsky, NY Slip Op 07652 (1st Dep't November 13, 2018)

Here is the decision.

Vacating an arbitral award.

Practice point:  The arbitrator's errors of fact or law are insufficient to vacate the award.

Student note:  CPLR 7511 provides four grounds for vacating an award, one of which is the exceeding of the arbitrator's power. This requires a showing that the award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

Matter of NRT N.Y. LLC v. Spell, NY Slip Op 07664 (1st Dep't November 13, 2018)

Here is the decision.

Disclosure of mental health records.

Practice point:  Plaintiff put his mental condition at issue by seeking to recover damages for emotional distress. Pursuant to CPLR 3101(a), he must provide defendants with an unlimited authorization for all mental health records for treatment in connection with the injuries he alleges in the complaint.

Rosen v. MHM Realty LLC, NY Slip Op 07549 (1st Dep't November 8, 2018)

Here is the decision.

Discovery and the timing of a summary judgment motion.

Practice point:  There should be a reasonable opportunity to conduct discovery prior to the determination of a summary judgment motion, pursuant to CPLR 3212(f), where further discovery might lead to relevant evidence.

Haxhijaj v. Ferrer, NY Slip Op 07416 (2d Dep't November 7, 2018)

Here is the decision.

An affirmative defense of improper service.

Practice point:  After serving an answer asserting the affirmative defense, a defendant must move for judgment within 60 days, pursuant to CPLR 3211(e).

Student note:  Service of an amended answer does not reset the 60-day period.

Bulkan v. Stepp's Towing Serv., Inc., NY Slip Op 07406 (2d Dep't November 7, 2018)

Here is the decision.

An unenforceable fees provision.

Practice point:  A contractual provision which provides that the tenant must pay attorneys' fees if it commences an action against the landlord based on the landlord's default is unconscionable and unenforceable as a penalty.

Student note:  Parties to a lease may contract for reasonable attorneys' fees provided that they are not in the nature of penalty or forfeiture. Whether a fees provision is an unenforceable penalty is a question of law. A finding of unconscionability requires a showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.

Matter of Krodel v. Amalgamated Dwellings Inc., NY Slip Op 07531 (1st Dep't November 8, 2018)

Here is the decision.

MACV.

                      

Normandy.

In Flanders Fields.

Dismissal of a Dram Shop Act claim.

The defendant was granted summary judgment dismissing plaintiff's cause of action brought under the Dram Shop Act, codified at General Obligations Law § 11-101. A witness testified that the plaintiff's assailant did not appear visibly intoxicated when the defendant served him two drinks. This evidence is enough to make out a prima facie showing that the assailant was not visibly intoxicated at the time he was served alcohol, since it is clear from the record that he was not served from that time until he attacked the plaintiff.  In opposition, the plaintiff failed to raise a triable issue of fact.

Ricaurte v. Inwood Beer Garden & Bistro Inc., NY Slip Op 07242 (1st Dep't November 9, 2018)

Here is the decision.

The doctrine of equitable estoppel.

The doctrine does not toll the limitations statute if the plaintiff had timely knowledge sufficient to put it under a duty to make inquiry and ascertain all the relevant facts prior to the expiration of the applicable limitations period.

Brean Murray, Carret & Co. v. Morrison & Foerster LLP, NY Slip Op 07238 (1st Dep't October 30, 2018)

Here is the decision.

A premature motion for summary judgment.

Pursuant to CPLR 3212[f], the motion will be denied as premature on a demonstration that facts essential to opposing the motion may lie within the movant's exclusive knowledge or control.

Marabyan v. 511 W. 179 Realty Corp., NY Slip Op 07237 (1st Dep't October 30, 2018)

Here is the decision.

Court holiday.

A § 1983 claim for deliberate indifference to medical needs.

Where the defendant-hospital contracted with the City to provide medical care to persons incarcerated at the City's detention facility, it is considered a municipality for purposes of a 42 USC § 1983 analysis. A municipal defendant is subject to statutory liability for deliberate indifference to medical needs only where the alleged injury results from the execution of an unconstitutional policy or practice.

Smith v. St. Barnabas Hosp., NY Slip Op 07189 (1st Dep't October 25, 2018)

Here is the decision.

A settling municpality-defendant.

Pursuant to CPLR 5003-a(b), a settling municipality-defendant must pay all sums due to the plaintiff within ninety days of the plaintiff's tender of the settlement documents. Pursuant to 5003-a(e), if the municipality does not make timely payment, the plaintiff is entitled to a judgment in the amount set forth in the release, together with costs and lawful disbursements, and interest on the amount set forth in the release from the date of the tender of the release and stipulation of discontinuance.

Howell v. City of New York, NY Slip Op 07178 (1st Dep't October 25, 2018)

Here is the decision.

Moving for a default judgment.

The movant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear. In opposition, the defendant must demonstrate a reasonable excuse for the delay and a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. Similarly, to extend the time to answer the complaint and to compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense, pursuant to CPLR 3012[d).

Aurora Loan Servs., LLC v. Movtady, NY Slip Op 07085 (2d Dep't October 24, 2018)

Here is the decision.

Judiciary Law § 487.

Under Judiciary Law § 487, an attorney who is guilty of any deceit or collusion, or who consents to any deceit or collusion, with the intent to deceive the court or any party, is liable to the injured party for treble damages. A claim of a statutory violation requires an allegation of an intent to deceive, whereas a legal malpractice claim is based on negligent conduct.

Aristakesian v. Ballon Stoll Bader & Nadler, P.C., NY Slip Op 07084 (2d Dep't October 24, 2018)

Here is the decision.

The duty to maintain public sidewalks.

Under Administrative Code of City of NY § 7-210, an abutting property owner has a duty to maintain the public sidewalk, but the City is responsible for maintaining any part of the sidewalk that is within a designated bus stop location.

McCormick v. City of New York, NY Slip Op 07175 (1st Dep't October 23, 2018)

Here is the decision.

Confirmation of a referee's report.

The report will be confirmed when the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility.

33-37 Farrington, LLC v. Global Universal Group, Ltd., NY Slip Op 07081(2d Dep't October 24, 2018)

Here is the decision.

Vacating a judgment.

A court's inherent discretionary power to vacate judgments is not limited to the grounds specified in CPLR 5015(a).

Wansdown Props. Corp., N.V. v. Azari, NY Slip Op 07048 (1st Dep't October 23, 2018)

Here is the decision.

Duress as a defense in a contracts action.

The threatened exercise of a legal right does not constitute duress.

Nuntnarumit v. Lyceum Partners LLC, NY Slip Op 07041 (1st Dep't October 23, 2018)

Here is the decision.

Deeming an answer timely filed.

A demonstration of ongoing settlement negotiations between a plaintiff and the defendant's insurance carrier is a reasonable excuse for the defendant's delay in answering. The court may providently exercise its discretion in denying default judgment and accepting the defendant's answer, deeming it timely filed, nunc pro tunc.

Manne v. Berkowits Sch. of Electrolysis, Inc. NY Slip Op 06997 (1st Dep't October 18, 2018)

Here is the decision.

A motion to change venue.

Pursuant to CPLR 510(2), the movant must produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be had in the county where venue was properly placed. The motion is at the sound discretion of the trial court, and its determination will not be reversed absent an improvident exercise of discretion.

Sowell v. Gansburg, NY Slip Op 06958 (2d Dep't October 17, 2018)

Here is the decision.

An attorney's conflict of interest.

An attorney may not undertake a representation where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the fiduciary obligations of the attorney-client relationship. The attorney is in violation of Rule of Professional Conduct 1.7, and is not entitled to legal fees.

Saint Annes Dev. Co. v. Batista, NY Slip Op 06956 (2d Dep't October 17, 2018)

Here is the decision.

Comparative negligence.

A plaintiff is not required to demonstrate freedom from comparative negligence in order to be entitled to summary judgment as to the defendant's liability.

Chan v. Choi, NY Slip Op Op 06857 (1st Dep't October 16, 2018)

Here is the decision.

Opposing a motion for summary judgment.

Mere conclusory allegations, expressions of hope, or unsubstantiated assertions are insufficient to defeat a motion for summary judgment.

Caputo v. Citimortgage, Inc.NY Slip Op 06713 (2d Dep't October 10, 2018)

Here is the decision.

Moving to vacate a default.

A party is precluded from moving to vacate its default on grounds asserted in a prior motion that was denied, and from which no appeal was taken, or on grounds that were apparent when the party made the prior motion but which were not asserted therein.

A.G. Parker, Inc. v. 246 Rochester Partners, LLC, NY Slip Op 06711 (2d Dep't October 11, 2018)

Here is the decision.

Adverse possession.

In order to establish adverse possession, a plaintiff must demonstrate, by clear and convincing evidence, that its possession has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual for a period of 10 years, pursuant to RPAPL 501[2] and CPLR 212[a].

168-170 Flushing Ave, LLC v. February 22, LLC, NY Slip Op 06710 (2d Dep't October 10, 2018)

Here is the decision.

Skiing accidents.

 General Obligations Law § 18-107 states that, "[u]nless otherwise specifically provided in this article, the duties of skiers, passengers, and ski operators shall be governed by common law."  The common law applies where plaintiffs allege inadequate padding of defendant's snowmaking pole, as the statute does not specifically address this circumstance.

Madsen v. Catamount Ski Resort, NY Slip Op 06794 (1st Dep't October 11, 2018)

Here is the decision.

Ambiguous contracts.

If the contract is ambiguous, it cannot be construed as a matter of law, and a summary judgment motion will be denied.

Funk v. Seligson, Rothman & Rothman, Esqs., NY Slip Op 06614 (1st Dep't October 4, 2018)

Here is the decision.

Discovery of tax returns.

A party seeking disclosure of tax returns must make a strong showing that the information contained in the returns is necessary and unavailable from other sources.  However, the underlying financial information which is contained in documents other than tax returns, such as in Form K-1s, is discoverable.

Norddeutsche Landesbank Girozentrale v. Tilton, NY Slip Op 06633 (1st Dep't October 4, 2018)

Here is the decision.

The doctrine of equitable mortgage.

The doctrine is inapplicable where there is a legal written mortgage.

21st Mtge. Corp. v. Nweke, NY Slip Op 06509 (2d Dep't October 3, 2018)

Here is the decision.

Service of process.

Ordinarily, a process server's affidavit of service constitutes prima facie evidence of proper service. However, the affidavit must be an affidavit of service, and not just an affidavit of due diligence in attempting service. Absent service, a default judgment is a nullity.

2004 McDonald Ave. Corp. v. KGYM Holdings Group, Inc., NY Slip Op 06508 2d Dep't (October 3, 2018)

Here is the decision.

Court holiday.

Discovery sanctions.

The order granting plaintiffs' motion to the extent of deeming all liability issues resolved in their favor was reversed, and the motion denied. Plaintiffs failed to establish that defendants' conduct during discovery was willful, contumacious, or in bad faith. When the motion was made, defendants were in violation of a single court order.  The court improvidently exercised its discretion in imposing the sanction nine months after plaintiffs brought the motion, when discovery had been completed and the note of issue had been filed.

Butler v. Knights Collision Experts, Inc., NY Slip Op 06474 (1st Dep't October 2, 2018)

Here is the decision.

The doctrine of judicial estoppel.

A party who assumed a certain position in a prior proceeding and secured a favorable ruling may not advance a contrary position in another action simply because its interests have changed.

Herman v. 36 Gramercy Park Realty Assoc., LLC, NY Slip Op 06473 (1st Dep't October 2, 2018)

Here is the decision.

A dismissed claim of promissory estoppel.

The claim is barred by the alleged existence of a contract.

ID Beauty S.A.S. v. Coty Inc. Headquarters, NY Slip Op 06322 (1st Dep't September 27, 2018)

Here is the decision.

The storm in progress rule.

A property owner is not liable for accidents resulting from the accumulation of snow and ice for a sufficient period of time following the storm so that the owner can ameliorate the hazards.  On a motion for summary judgment, the question of whether a reasonable time has elapsed may be decided as a matter of law. A plaintiff's speculative deposition testimony will not defeat the motion.

Autieri v. Longi, NY Slip Op 06222 (2d Dep't September 26, 2018)

Here is the decision.

Judiciary Law § 487 and the recovery of costs.

Pursuant to the statute, a plaintiff may recover only the excess legal costs that were proximately caused by the attorney's alleged deceit.

Melcher v. Greenberg Traurig LLP, NY Slip Op 06310 (1st Dep't September 27, 2018)

Here is the decision.

A motion to compel the plaintiff to accept an answer.

Pursuant to CPLR 3012(d), where there is a meritorious defense and no showing of either willfulness or prejudice as a result of the delay, the policy of resolving disputes on the merits militates in favor of granting the motion.

Cantave v. 170 W. 85 St. Hous. Dev. Fund Corp., NY Slip Op 06196 (1st Dep't September 25, 2018)

Here is the decision.

Settlement agreements.

An agreement between the parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding unless it is in a writing subscribed by the party or the party's attorney or reduced to the form of an order and entered, pursuant to CPLR 2104. A stipulation of settlement signed by an attorney may bind the client even if it exceeds the attorney's actual authority if the attorney had apparent authority to act on the client's behalf.

Anghel v. Utica Mut. Ins. Co., NY Slip Op 06073 (2d Dep't September 19, 2018)

Here is the decision.

Standing to sue as a third-party beneficiary.

A plaintiff is an intended third-party beneficiary of an agreement that explicitly refers to the plaintiff and grants it enforceable rights. Accordingly, the agreement's boilerplate exclusion of third-party beneficiaries is without effect, and the action may not be dismissed for lack of standing.

MPEG LA, LLC v. Samsung Elecs. Co., Ltd., NY Slip Op 06147 (1st Dep't September 20, 2018)

Here is the decision.

A building owner's duty of care.

A building owner-defendant's compliance with applicable building codes is not dispositive of whether the owner has breached the common-law duty of care.

Sussman v. MK LCP Rye LLC, NY Slip Op 06143 (1st Dep't September 20, 2018)

Here is the decision.

Appellate practice.

Pursuant to CPLR 5520(c), the Appellate Division has the discretion to deem valid a notice of appeal from an order, and not the ensuing final judgment, and address the merits of the appeal.

Gem Holdco, LLC v. Changing World Tech., L.P., NY Slip Op 06139 (1st Dep't September 20, 2018)

Here is the decision.

Waiver of a defense.

A defendant waives a statute of limitations defense by failing to raise it in an answer or in a timely pre-answer motion to dismiss, pursuant to CPLR 3211(a)(5) and (e).

21st Mtge. Corp. v. Palazzotto, NY Slip Op 06072 (2d Dep't September 19, 2018)

Here is the decision.

Liability under the Labor Law.

Labor Law § 240(1) is construed as liberally as possible in order to accomplish its purpose of protecting workers. The statute imposes a nondelegable duty on owners and contractors to protect workers from the risks associated with the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure, and it puts the ultimate responsibility on them to provide scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other protective devices. The failure to do so resulting in injury to a worker engaged in the type of work covered by the statute establishes an owner or contractor's liability as a matter of law.  An owner is liable under the statute even where it exercises no control over work being performed by a contractor.

Mananghaya v. Bronx-Lebanon Hosp. Ctr., NY Slip Op 06061 (1st Dep't September 13, 2018)

Here is the decision.

A derivative claim.

When a plaintiff's alleged money damages flow from harm to the corporate entity, the claim is derivative, not direct.

Pokoik v. Norsel Realties, NY Slip Op 06056 (1st Dep't September 14, 2018)

Here is the decision.

Landlord fraud and rent regulation.

Where the landlord has engaged in fraud in initially setting the rent or in removing an apartment from rent regulation, the court may examine the apartment's rental history, even beyond the statutory period set forth in CPLR 213-a.

Kreisler v. B-U Realty Corp., NY Slip Op -6-54 (1st Dep't September 13 2018)

Here is the decision.

A Yellowstone injunction.

The purpose of the injunction is to maintain the status quo so that, when confronted by the threat of termination, a commercial tenant may protect its investment in the leasehold. The injunction stays the tolling of the cure period, and, if there is an adverse determination on the merits, the tenant may cure the default. To secure the injunction, the tenant must demonstrate (1)  a commercial lease; (2) the landlord's notice of default, notice to cure, or threat to terminate; (3) that the lease has not been terminated and the cure period has not expired; and (4) the ability to cure by any means short of vacating the premises.  A plaintiff demonstrates that it has the ability to cure by establishing in its motion papers that it is willing to repair any defective condition found by the court, and by providing proof of its effort in addressing the default listed on the notice to cure.

146 Broadway Assoc., LLC v. Bridgeview at Broadway, LLC, NY Slip Op 05990 (2d Dep't September 12, 2018)

Here is the decision.

Service.

Pursuant to CPLR 317, a defendant who has been served with a summons other than by personal delivery may defend the action on the court's finding that the defendant did not personally receive notice of the summons in time to defend, and has a potentially meritorious defense.  Service on a corporation through the secretary of state is not personal delivery. The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action.

Stevens v. Stepanski, NY Slip Op 05954 (2d Dep't August 29, 2018)

Here is the decision.

Limitations period in a foreclosure action.

Pursuant to CPLR 213(4), an action to foreclose a mortgage is governed by a six-year statute of limitations.  Once the mortgage debt is accelerated, even if it is payable in installments, the entire amount is due, and the statutory period begins to run on the entire debt.

Yadegar v Deutsche Bank Natl. Trust Co., NY Slip Op 05057 (2d Dep't August 29, 2018)

Here is the decision.

Administrative law judges.

The decisions of administrative law judges are not entitled to deference by courts.

Morse v. Fidessa Corp., NY Slip Op 05975 (1st Dep't September 6, 2018)

Here is the decision.

Proper service.

A process server's affidavit is prima facie evidence of proper service.

Margarella v. Ullian, NY Slip Op 05926 (2d Dep't August 29, 2018)

Here is the decision.

Strict liability for dog bites.

To recover on a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities, and that the owner knew or should have known of the dog's propensities. Vicious propensities include the propensity to do any act that might endanger the safety of persons or the property of others. Evidence tending to prove that a dog has vicious propensities includes a prior attack; the dog's tendency to growl, snap, or bare its teeth; the manner in which the dog was restrained; and a proclivity to act in a way that puts others at risk.

Lipinsky v. Yarusso, NY Slip Op 05925 (2d Dep't August 29, 2018)

Here is the decision.

General Obligations Law § 17-101.

The statute revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt. To constitute a valid acknowledgment, the writing must be signed; it must must recognize an existing debt; and it must contain nothing inconsistent with the debtor's intention to pay the debt.

Karpa Realty Group, LLC v. Deutsche Bank Natl. Trust Co., NY Slip Op 05921 (2d Dep't August 29, 2018)

Here is the decision.

Claims of negligent hiring or supervision.

A necessary element of the cause of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.  There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.

KM v. Fencers Club, Inc., NY Slip Op 05923 (2d Dep't August 29, 2018)

Here is the decision.

Pleading a joint venture agreement.

In order to properly plead the agreement, a plaintiff must allege acts manifesting the parties' intent to be associated as joint venturers; mutual contribution to the joint undertaking through a combination of property, financial resources, effort, skill or knowledge; a measure of joint proprietorship and control over the enterprise; and a provision for the sharing of profits and losses. Under both common law and statutory law, a contract of  joint venture or partnership must include a mutual promise to share in the profits of the business and submit to the burden of making good the losses.

Slabakis v. Schik, NY Slip Op 05962 (1st Dep't August 30, 2018)

Here is the decision.

Spoliation.

When a party negligently loses or intentionally destroys key evidence, depriving the other party of a claim or defense, the court may direct the striking of its pleading.  In the absence of willful or contumacious conduct, the court must consider the prejudice resulting from the spoliation. If the other party is still able to establish or defend the claim, a less severe sanction is appropriate.

Francis v. Mount Vernon Bd. of Educ., NY Slip Op 05916 (2d Dep't August 29, 2018)

Here is the decision.

Court holiday.

A school's liability.

While schools have a duty to adequately supervise students, third-party acts causing injury to a fellow student will not give rise to the school's liability in negligence absent actual or constructive notice of prior similar conduct.

Francis v. Mount Vernon Bd. of Educ., NY Slip Op 05916 (2d Dep't August 29, 2018)

Here is the decision.

CPLR 3216.

Pursuant to the statute, a court may, on its own initiative, dismiss an action for failure to prosecute. CPLR 3216(a) requires service of the defendant's written demand stating that the plaintiff's failure to proceed within ninety days will result in a motion to dismiss. A conditional order of dismissal may have the same effect as a valid 90-day notice if, among other things, the order satisfies the statutory notice requirement.

Deutsche Bank Natl. Trust Co. v. Bastelli, NY Slip Op 05822 (2d Dep't August 22, 2018)

Here is the decision.

The City's duty of care over streets and sidewalks.

Administrative Code of the City of New York § 7-201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location.  Accordingly, prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City.  The only recognized exceptions to the prior written notice requirement involve situations in which either the municipality created the defect through an affirmative act of negligence, or a special use confers a special benefit upon the municipality.

Allen v. City of New York, NY Slip Op 05811 (2d Dep't August 22, 2018)

Here is the decision.

Probable cause as an affirmative defense.

Probable cause constitutes a complete defense to causes of action alleging false arrest, false imprisonment, and malicious prosecution. The defense extends to § 1983 claims that are the federal-law equivalents of state common-law causes of action for false arrest and malicious prosecution.

Ball v. Miller, NY Slip Op 05813 (2d Dep't August 22, 2018)

Here is the decision.

Leave to amend.

Leave will be granted where the amendment shifts a claim from a party without standing to another party who could have asserted the claim in the first instance, as the defendants had prior knowledge of the claim and an opportunity to prepare a proper defense. It does not matter that the applicable statute of limitations had expired by the time the plaintiff moved to amend, since the original complaint was timely filed and gave the defendants notice of the transactions and occurrences pleaded in the amended complaint, pursuant to CPLR 203[f].

D'Angelo v. Kujawski, NY Slip Op 05750 (2d Dep't August 15, 2018)

Here is the decision.

A motion for leave to renew.

The motion must be based on new facts, not offered on the original application, that would change the prior determination. Leave is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion.

Analiese Home Corp. v. Mannari, NY Slip Op 05812 (2d Dep't August 22, 2018)

Here is the decision.

A court's sua ponte dismissal.

A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal. In the absence of a jurisdictional defect, sua sponte dismissal is not warranted.

Countrywide Home Loans, Inc. v. Campbell, NY Slip Op 05749 (2d Dep't August 15, 2018)

Here is the decision.

Disclosure of expert witnesses.

A party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment. The exercise of discretion is proper where the failure to disclose was neither intentional nor willful, and there is no prejudice to the other party.

Cobham v. 330 W. 34th SPE, LLC, NY Slip Op 05748 (2d Dep't August 15, 2018)

Here is the decision.

Judiciary Law § 487 and legal malpractice.

A claim alleging a violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice, as a violation of § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct.

Bill Birds, Inc. v. Stein Law Firm, P.C., NY Slip Op 05743 (2d Dep't August 15, 2018)

Here is the decision.

Opposing a summary judgment motion.

In opposing a plaintiff's prima facie showing on a summary judgment motion, a defendant's submission of an attorney's affirmation containing only general denials is insufficient to raise a triable issue of fact.

Bank of New York v. Aiello, NY Slip Op 056741 (2d Dep't August 15, 2018)

Here is the decision.

Brokers' commissions.

A real estate broker is entitled to recover a commission upon establishing that it (1) is duly licensed; (2) had a contract, express or implied, with the party to be charged with paying the commission; and (3) was the procuring cause of the transaction.

Gluck & Co. Realtors, LLC v. Burger King Corp., NY Slip Op 05668 (2d Dep't August 8 2018)

Here is the decision.

A subpoena duces tecum.

A subpoena duces tecum may not be used for the purposes of general discovery.  Its purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding.

Bottini v. Bottini, NY Slip Op 05665 (2d Dep't August 8, 2018)

Here is the decision.

Statute of limitations as a defense.

The statute of limitations is an affirmative defense which is waived by a party unless it is raised either in a responsive pleading, or by motion prior to the submission of a responsive pleading, pursuant to CPLR 3211[e]. A court may not take judicial notice, sua sponte, of the applicability of a statute of limitations if that defense has not been raised.

352 Legion Funding Assoc. v. 348 Riverdale, LLC, NY Slip Op 05662 (2d Dep't August 8,2018)

Here is the decision.

The timing of summary judgment motions.

Any party may move for summary judgment in any action, after issue has been joined, pursuant to CPLR 3212[a].

Tiberg v. Strebel-Eichner, NY Slip Op 05714 (2d Dep't 2018)

Here is the decision.

Prior appeals.

An appellate court's resolution of an issue on a prior appeal constitutes the law of the case, and is binding on both the trial court and the appellate court. It forecloses re-examination of the question, absent a showing of subsequent evidence or change of law.

Massey v. Byrne, NY Slip Op 05731 (1st Dep't August 9, 2018)

Here is the decision.

A dismissal based on documentary evidence.

In order to succeed on a motion to dismiss based on documentary evidence, pursuant to CPLR 3211(a)(1), the evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Never Used Cars, LLC v. Nat Hoe Equities Corp., NY Slip Op 05682 (2d Dep't August 8, 2018)

Here is the decision.

The scope of a general release.

The meaning and coverage of the release necessarily depends upon the controversy being settled and  the purpose for which the release is given. While a broad general release will be given effect regardless of the parties' unexpressed intentions, the release may not be read to cover matters which the parties did not intend for it to cover.

Chiappone v. North Shore Univ. Hosp., NY Slip Op 05569 (2d Dep't August 1, 2018)

Here is the decision.

Gender discrimination under the City Human Rights Law.

In order to establish a gender discrimination claim under the statute, a plaintiff need only demonstrate, by a preponderance of the evidence, disparate treatment because of gender. It is not necessary to invoke sexual harassment or quid pro quo. A defendant can assert an affirmative defense and avoid liability if the conduct amounts to nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences.

Suri v. Grey Global Group, Inc., NY Slip Op 05627 (1st Dep't August 2, 2018)

Here is the decision.

Preliminary injunctions.

Pursuant to CPLR article 63, the injunction may issue on a showing of (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor. The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court.

Apple A.C. & Appliance Serv., Inc. v. Apple Home Heating Corp., NY Slip Op 05567 (2d Dep't August 1, 2018)

Here is the decision.

Attorney depositions.

The First Department has adopted the Second Department's rule that a party seeking to depose opposing counsel must demonstrate a good-faith basis, in addition to showing that the information sought is material, necessary, and unavailable from another source. The demonstration of good faith is intended to rule out the possibility that the deposition is sought as a tactic intended solely to disqualify counsel, or for some other illegitimate purpose.

Liberty Petroleum Realty, LLC v. Gulf Oil, L.P., NY Slip Op 05624 (1st Dep't 2018)

Here is the decision.

Summary judgment on a landlord's cross-claim for contractual indemnification.

Summary relief is appropriate where, as here, the lease is unambiguous and clearly sets forth the parties' intention that the tenant indemnify the landlord for the injuries sustained.

Hong-Bao Ren v. Gioia St. Marks, LLC, NY Slip Op 05520 (1st Dep't July 26, 2018)

Here is the decision.

A motion to withdraw as counsel.

An attorney may be permitted to withdraw where the client refuses to pay reasonable legal fees, pursuant to Rules of Professional Conduct [22 NYCRR 1200.0] 1.16[c][5].  Additionally, an attorney may withdraw if the client fails to cooperate in the representation, or otherwise makes it unreasonably difficult for the lawyer to carry out representation effectively, pursuant to 1.16[c][7].

Applebaum v. Einstein, NY Slip Op 05437 (2d Dep't July 25, 2018)

Here is the decision.

Coop boards and fiduciary duties.

A claim for breach of fiduciary duty does not lie against individual board members in the absence of an allegation of individual wrongdoing by the members, separate and apart from their collective actions taken on behalf of the cooperative. A corporation owes no fiduciary duty to its shareholders.

Hersh v. One Fifth Ave. Apt. Corp., NY Slip Op 05522 (1st Dep't July 26, 2018)

Here is the decision.

Personal jurisdiction.

While the ultimate burden of proof rests with the party asserting jurisdiction, a plaintiff, in opposing a motion to dismiss pursuant to CPLR 3211(a)(8), is required to make only make a prima facie showing that the defendant is subject to personal jurisdiction. Where the plaintiff opposes the motion on the ground that discovery is necessary, the plaintiff need only demonstrate that there may be facts sufficient for the exercise of personal jurisdiction over the defendant. On such a showing, the court may, in the exercise of its discretion, postpone resolution of the jurisdictional question, pursuant to CPLR 3211[d].

Abad v. Lorenzo, NY Slip Op 05426 (2d Dep't July 25, 2018)

Here is the decision.

Punitive damages.

A separate cause of action for punitive damages is not legally cognizable in New York, and a claim based solely on punitive damages must be dismissed.

Jean v. Chinitz, NY Slip Op 05521 (1st Dep't July 26, 2018)

Here is the decision.

Liability under the Labor Law.

By its express terms, § 240(1) applies to "contractors and owners and their agents." A party is deemed to be an owner or general contractor's agent when it has supervisory control and authority over the work being done. For liability to attach, the defendant must have the authority to control the activity bringing about the injury so that it could have avoided or corrected the unsafe condition. The determinative factor is whether the defendant had the right to exercise control over the work, not whether it actually exercised that right.

Cabrera v. Arrow Steel Window Corp., NY Slip Op 05275 (2d Dep't July 18, 2018)

Here is the decision.

Constructive notice of a dangerous condition.

A defendant has constructive notice of a hazardous condition on its property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and fix it.

Bennett v. Alleyne, NY Slip Op 05272 (2d Dep't July 18, 2018)

Here is the decision.

Appellate practice.

No appeal lies from an order or judgment entered upon the default of the appealing party, pursuant to CPLR 5511.

Alvarez v. Jawaid, NY Slip Op 05269 (2d Dep't July 18, 2018)

Here is the decision.

Discernible hazards.

A property owner has a nondelegable duty to maintain its premises in a reasonably safe condition, taking into account the forseeability of injury to others. Even if a hazard is discernible, the owner may be liable.  A plaintiff's awareness of a dangerous condition does not negate a duty to warn of the hazard, but only goes to the issue of comparative negligence.

Farrugia v. 1440 Broadway Assoc., NY Slip Op 05222 (1st Dep't July 12 2018)

Here is the decision.

Waiver of the issue of standing.

A plaintiff who fails to timely appear or answer waives the issue of standing, pursuant to CPLR 3211(e).

U.S. Bank N.A. v. Thompson, NY Slip Op 05403 (1st Dep't July 19, 2018)

Here is the decision.

Vacating a default.

Pursuant to CPLR 5015(a)(1), a defendant seeking vacatur on the ground of excusable default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action.

Allstate Ins. Co. v. North Shore Univ. Hosp., NY Slip Op 05268 (2d Dep't July 18, 2018)

Here is the decision.

Joint trials.

When actions involving a common question of law or fact are pending before a court, the court, on a motion, may order a joint trial of any or all the matters in issue, pursuant to CPLR 602[a]. The determination of the motion is addressed to the sound discretion of the court.  Denial of the motion may be warranted where: (1) there are no common questions of law or fact;  (2) the actions involve dissimilar issues or disparate legal theories; (3) a joint trial would substantially prejudice an opposing party; or (4) there is a risk of confusing the jury or rendering the litigation unwieldy.

Cromwell v. CRP 482 Riverdale Ave., LLC, NY Slip Op 05137 (2d Dep't July 11, 2018)

Here is the decision.

Premises liability.

In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of it. The defendant can also meet the burden by demonstrating, prima facie, that the plaintiff cannot identify the cause of the accident.

Burke v. Umbaca, NY Slip Op 05132 (2d Dep't July 11, 2018)

Here is the decision.

CPLR 3215(c), defaults, and dismissals.

CPLR 3215(c) states that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." It is not necessary for the plaintiff to actually obtain a default judgment within one year in order to avoid dismissal under the statute. If the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, the statute is not a basis for dismissal.

Bank of Am., N.A. v. Lucido, NY Slip Op 05130 (2d Dep't July 11, 2018)

Here is the decision.

A motion for leave to renew.

The motion must be based on new facts not offered on the earlier motion that would change the prior determination, and must set forth a reasonable justification for the failure to present the facts on the prior motion, pursuant to CPLR 2221[e][2], [3].

B & R Mech., Inc. v. Oak Ridge Hollow, LLC, NY Slip Op 05129 (2d Dep't July 11, 2018)

Here is the decision.

Liability for an independent contractor's negligence.

A principal is not liable for the acts of an independent contractor because, unlike the master-servant relationship, principals cannot control the manner in which independent contractors perform their work.

Sampedro v. Ellwood Realty, LLC, NY Slip Op 05120 (1st Dep't July 10, 2018)

Here is the decision.

A directed verdict in a medical malpractice case.

The court granted defendant-doctor's motion for a directed verdict, and dismissed the complaint, in this action where plaintiff's expert did not specifically opine as to whether defendant departed from a specific standard of accepted medical practice. The conduct at issue, which involved the implantation of a technologically challenging device, is not within the knowledge of a lay jury. Neither, in the absence of expert testimony, could the jury discern whether this was a known risk or negligence.

Tropeano v Sandhu, NY Slip Op 04967 (1st Dep't Jun 5, 2018)

Here is the decision.

An improper fee-sharing agreement.

Judiciary Law § 491[1] prohibits any person, partnership, or corporation from sharing an attorney's fee in consideration of having placed in the attorney's hands a claim or demand of any kind. Pursuant to § 491[2], a violation is punishable as a misdemeanor.  Here, under the purported fee-sharing agreement, the plaintiffs would provide the defendant attorneys with proprietary information regarding potential clients, investigate claims, interview potential plaintiffs, and otherwise assist with litigation. In exchange, the defendant attorneys would pay the plaintiffs 20% of their fee for each case. This agreement is illegal and unenforceable. The plaintiffs are not entitled to equitable relief, since the contract was criminal in nature and not merely prohibited by statute.

Ballan v Sirota, NY Slip Op 05014 (2d Dep't July 5, 2018)

Here is the decision.

An out-of-possession landlord's liability.

Snow or ice is not a significant structural or design defect for which an out-of-possession landlord may be held liable.

Fuentes-Gil v, Zear LLC, NY Slip Op 04964 (1st Dep't July 5, 2018)

Here is the decision. 

A dismissed unjust enrichment claim.

A valid and enforceable contract governing the subject matter at issue precludes recovery in quasi-contract for events arising out of that subject matter.

Lantau Holdings Ltd. v. General Pac. Group Ltd., NY Slip Op 04952 (1st Dep't July 3, 2018)

Here is the decision. 

Limitations period for misappropriation of trade secrets, tortious interference, and unfair competition.

These causes of action allege injuries to property, and, pursuant to CPLR 214[4], they are governed by a three-year statute of limitations.

CDx Labs., Inc. v. Zila, Inc., NY Slip Op 04692 (2d Dep't June 27, 2018)

Here is the decision.

Construction subcontracts.

Under New York law, clauses in a construction subcontract, incorporating prime contract clauses by reference, bind the subcontractor only as to the prime contract provisions relating to the scope, quality, character, and manner of the work to be performed by the subcontractor.

Naupari v. Murray, NY Slip Op 04945 (1st Dep't July 3, 2018)

Here is the decision.

Crossing guards and the City's liability.

Dismissal was granted as to the City in this action where the infant plaintiffs, on their way to school, were walking within the crosswalk when one of them was struck by a school bus owned by defendant-bus company and operated by defendant-bus driver. The City had assigned a crossing guard to assist children at the intersection, but the guard called out sick that morning.

In order to establish that the City voluntarily assumed a duty, a plaintiff must show: (1) an assumption by the City's agents, through promises or action, of an affirmative duty to act on behalf of the plaintiff; (2) knowledge on the part of the City's agents that inaction could lead to harm; (3) some form of direct contact between the City's agents and the plaintiff; and (4) the plaintiffs justifiable reliance.  Here, as a matter of law, the City had assumed no special duty as to the plaintiffs. There was no direct contact between the City's agents and the plaintiffs. The fact that the guard, when on duty, greeted the plaintiffs and they relied on the guard's instructions does not create a special duty.

Ivan D. v. Little Richie Bus Serv. Inc., NY Slip Op 04823 (1st Dep't June 28, 2018)

Here is the decision.

A viable malpractice claim.

Plaintiff sufficiently pled a claim as against successor firm and the prior firm. Successor counsel had the chance to protect plaintiff's rights by seeking discretionary leave, pursuant to General Municipal Law § 50-e(5), to serve a late notice of claim. Whether the motion would have succeeded is up to the trier of fact. Denying dismissal is not speculative, as the trial court will weigh the established factors in exercising its § 50-e(5) discretion. Prior counsel failed to serve a timely notice of claim as of right in the underlying personal injury action. Plaintiff has a viable claim in spite of the fact that the successor firm was substituted as counsel before the expiration of time to move to serve a late notice. The substitution will be deemed a superseding and intervening act severing malpractice liability only if it is determined that the motion to file a late claim would have been successful.

Liporace v. Neimark & Neimark, LLP, NY Slip Op 04668 (1st Dep't June 26, 2018)

Here is the decision.

Service other than by personal delivery.

Pursuant to CPLR 317, a defendant who is served other than by personal delivery may defend the action within one year after learning of entry of the judgment on a finding that the summons was not  received in time to defend and that there is a potentially meritorious defense.

Benchmark Farm, Inc. v. Red Horse Farm, LLC, NY Slip Op 04522 (2d Dep't June 20, 2018)

Here is the decision.

Dismissal of duplicative claims.

The conversion and aiding and abetting conversion claims are dismissed as duplicative of the breach of contract claim, because they are predicated on the breach of contract and allege no facts that would give rise to tort liability.

Johnson v. Cestone, NY Slip Op 04512 (1st Dep't June 19, 2018)

Here is the decision.

Summary judgment to a non-moving party.

The Appellate Division has authority to search the record and award summary judgment to the nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court, pursuant to CPLR 3212[b].

Bank of N.Y. v. Penalver, NY Slip Op 04521 (2d Dep't June 20, 2018)

Here is the decision.

Labor Law § 240(1).

The statute imposes a nondelegable duty upon owners, general contractors, and their agents to provide proper protection to persons working upon elevated structures. To be considered a statutory agent, the subcontractor must have been delegated the supervision and control over the work or the work area which gave rise to the aleged injury.  A subcontractor who is a statutory agent may not escape liability by delegating the work to another entity.

White v. 31-01 Steinway, LLC, NY Slip Op 04279 (1st Dep't June 12, 2018)

Here is the decision.

Jury verdicts.

A jury verdict will not be set aside as contrary to the weight of the evidence unless the verdict could not have been reached by any fair interpretation of the evidence.  It is for the jury to make determinations as to witness credibility, and reviewing courts give great deference to the jury, which actually saw and heard the witnesses.  The jury may believe or disbelieve a witness's testimony, or believe some parts of the testimony and disbelieve others.

Agostino v. L & M Bus Co., NY Slip Op 04297 (2d Dep't June 13, 2018)

Here is the decision.

Plaintiff as sole witness to the accident..

The fact that the plaintiff is the sole witness to the accident does not preclude summary judgment in his favor where nothing in the record contradicts his account or raises an issue of fact as to his credibility.

Concepcion v. 333 Seventh LLC, NY Slip Op 0442 (1st Dep't June 14 2018)

Here is the decision.

A municipality's liability for a personal injury.

Generally, a municipality is not liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection.  On a negligence claim against a municipality exercising a governmental function, the plaintiff must first demonstrate that the municipality owed a special duty to the injured person. The elements required to establish the duty are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.

Axt v. Hyde Park Police Dept., NY Slip Op 04298 (2d Dep't June 13, 2018)

Here is the decision.

The emergency doctrine.

The motion court properly invoked the doctrine where the plaintiff' adduced no evidence that the defendant-bus operator created the emergency or could have avoided a collision with the nonparty taxi by taking some action other than applying the brakes. The sudden unexpected swerving of the taxi into the bus lane required the defendant to act immediately.  His reaction of braking and swerving the bus to the right was reasonable under the circumstances. The defendant's awareness that taxis often cut-off buses does not require a different result.

Jones v. New York City Tr. Auth., NY Slip Op 04281 (1st Dep't June 12, 2018)

Here is the decision.

An easement by prescription.

Acquiring the easement requires a showing, by clear and convincing evidence, that the use was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period of ten years. Where an easement has been open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the other side to show that the use was permissive.

Ciringione v. Ryan, NY Slip Op 03960 (2d Dep't June 6, 2018)

Here is the decision.

A school's and the school bus operator's duty and liability.

Schools have a duty to adequately supervise their students, and they will be liable for foreseeable injuries proximately related to the lack of adequate supervision.  However, schools are not insurers of their students' safety.  A school bus operator owes the same duty to the students entrusted to its care and custody.  To establish a breach of the duty of adequate supervision where the alleged injury was caused by another student, a plaintiff must show that school authorities had sufficiently specific knowledge or notice of the alleged dangerous conduct.

Champagne v. Lonero Tr., Inc., NY Slip Op 03959 (2d Dep't June 6, 2018)

Here is the decision.

The doctrine of judicial estoppel.

Under the doctrine, sometimes called estoppel against inconsistent positions, a party may not take a position that is contrary to a position that, because its interests have changed, the party took in a prior proceeding. The doctrine applies only where, in the prior proceeding, the party secured a favorable judgment.

Binh v. Connelly, NY Slip Op 03956 (2d Dep't June 6, 2018)

Here is the decision.

Unclean hands and fraudulent conveyance.

While the doctrine of in pari delicto may be raised for the first time on appeal, it is not a defense to a fraudulent conveyance suit.

Matter of Wimbledon Fin. Master Fund, Ltd. v. Wimbledon Fund, SPC, NY Slip Op 04075 (1st Dep't June 7, 2018)

Here is the decision.

Motions for leave to renew.

Pursuant to CPLR 2221[e][2], the motion must be based on new or additional facts, not offered on the original motion, that would change the prior determination. Renewal requires a showing that the facts were not known to the movant, or, in the court's discretion, that they were not offered for a justifiable reason.. The court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the facts on the original motion.

Armstrong v. Armstrong, NY Slip Op 03953 (2d Dep't June 6, 2018)

Here is the decision.

Labor Law § 200.

The statute codifies an owner's or a general contractor's common-law duty to provide construction workers with a safe work-site. Whether under § 200 or the common law, claims arise either from an alleged defect or dangerous condition, or from the way the work was performed. Where the alleged defect is not inherent, but is created by the way the work is performed, the claim is one for means and methods, and not one for a dangerous condition.

Villanueva v. 114 Fifth Ave. Assoc. LLC, NY Slip Op 03928 (1st Dep't June 5, 2018)

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Dram shop statutes.

Pursuant to General Obligations Law § 11-101, a party who unlawfully sells alcohol to another person is liable for injuries caused by reason of that person's intoxication. Pursuant to Alcoholic Beverage Control Law § 65(1), it is unlawful to furnish an alcoholic beverage to any "person, actually or apparently, under the age of twenty-one years." While § 11-100 does not explicitly require knowledge or a reasonable belief of the purchaser's being underage, it is a requirement for liability to attach.

Ferber v. Olde Erie Brew Pub & Grill, LLC, NY Slip Op 03827 (2d Dep't May 30, 2018)

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Judiciary Law § 475.

 On a motion pursuant to § 475, the attorney seeks a lien on the client's cause of action. The lien does not provide for an immediately enforceable judgment against all the client's assets, but, instead, is a security interest against a judgment or settlement in the client's favor.  In order to obtain a money judgment, the attorney must commence a plenary action.

Bernard v. De Rham, NY Slip Op 03891 (1st Dep't May 31, 2018)

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74 years.

The sufficiency of a Notice of Claim.

The test of the sufficiency of the notice is merely whether it includes information sufficient to enable the city to investigate.  In making this determination, the Court may look at, among other things, the evidence adduced at the section 50-h hearing.

Here, according to the notice and evidence adduced at the 50-h hearing, plaintiff states that while she was on an escalator inside the train station, she slipped and fell on a slippery condition. Plaintiff alleges that the escalator was within the control of the agency and that it failed to maintain the escalator. Accordingly, the agency was on notice of plaintiff's theory of liability, namely, that it has a duty to use reasonable care to maintain the escalator in a safe condition.

Ingrao v. New York City Tr. Auth., NY Slip Op 03889 (1st Dep't May 31, 2018)

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Dissolution of an LLC.

 An application for dissolution of an LLC must be made by or for a member of the LLC, pursuant to Limited Liability Company Law § 702.

62 Park Place Realty, LLC v. Levin, NY Slip Op 03823 (2d Dep't May 30, 2018)

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Leave to amend.

The Appellate Division affirmed denial of the motion for leave to amend, as the proposed amended complaint is based on the same alleged wrongs as the original pleading. In the proposed amendment, plaintiff merely recasts derivative claims as direct ones.

MFB Realty LLC v. Eichner, NY Slip Op 03800 (1st Dep't May 29, 2018)

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Effective service.

Where the notice of service on the Secretary of State, and a copy of the summons and complaint mailed to the defendant's out-of-state address, were returned as undeliverable, service was never effectuated. However, where, as here, service is not timely made, the court may, for good cause or in the interest of justice, extend the time, pursuant to CPLR 306-b. In applying the interest of justice standard, the court may consider factors such as the plaintiff's diligence, or lack thereof; expiration of the Statute of Limitations; the meritorious nature of the claim; the length of the delay in service; the promptness of the plaintiff's request for the extension of time; and prejudice to the defendant. No one factor is determinative.

Nunez-Ariza v. Nell, NY Slip Op 03735 (1st Dep't May 24, 2018)

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Wages under the Labor Law.

So-called usage payments, which are third-party payments to models for the use of images taken at photo shoots, are not wages within the meaning of § 190[1].

Shanklin v. Wilhelmina Models, Inc., NY Slip Op 03732 (1st Dep't May 24, 2018)

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Motions to leave and/or to reargue.

A motion denominated as one for leave to renew and/or to reargue that is not based on new facts, pursuant to CPLR 2221(d)(2), is a motion for leave to reargue. The denial of the motion is not appealable.

Capital One Bank v. Phillips, NY Slip Op 03656 (2d Dep't May 23, 2018)

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Fraud in the inducement.

Plaintiffs' cause of action alleging fraud in the inducement was dismissed, as it is founded on non-actionable promises of future conduct or events, and not present fact, and non-actionable opinion of defendant as to his resources and capability of undertaking the work sought by plaintiffs.

Yablon v. Stern, NY Slip Op 03650 (1st Dep't May 22, 2018)

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Memorial Day.