Statute of limitations.

The statute of limitations is not tolled during the period between a defendant's demand for a hearing pursuant to General Municipal Law § 50-h and the hearing.

Mourato v. Suffolk County Water Auth., NY Slip Op 01912 (2d Dep't March 21, 2018)

Here is the decision.

Defamation actions and common-law malice.

A plaintiff cannot raise an issue of fact as to common-law malice if the defendant's statement was made in his own self-interest, and, thus, protected by a qualified privilege. The fact that the defendant may have harbored ill will toward the plaintiff is immaterial.

Glazier v. Harris, NY Slip Op 02025 (1st Dep't March 22, 2018)

Here is the decision.

Motions to reargue.

The motion will be denied unless there has been a change in the controlling law, or there is new evidence that would warrant a different result. Denial of the motion is not appealable.

Koplowitz v. King, NY Slip Op 0202 (1st Dep't March 22, 2018

Here is the decision.

Vacating, modifying, and confirming arbitration awards.

Pursuant to CPLR 7510, the court must confirm the award unless it is vacated or modified on a ground specified in CPLR 7511.

Matter of Granet & Assoc., Inc. v. Thom Filicia, Inc., NY Slip Op 02017 (1st Dep't March 22, 2018)

Here is the decision.

Vacating a default in opposing a motion.

In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion.  The motion to vacate must be made within one year after the movant has been served a copy of the judgment or order with written notice of entry.

Chase Home Fin., LLC v. Weinfeld, NY Slip Op 01899 (2d Dep't March 21, 2018)

Here is the decision.

Filing an RJI in a mortgage foreclosure action.

While 22 NYCRR 202.12-a(b)(1) states that at the time that proof of service of a summons and complaint is filed with the clerk, a plaintiff in a mortgage foreclosure action shall file a specialized RJI applicable to the action, it does not provide that the failure to do so will result in dismissal of the action.

BAC Home Loans Servicing, L.P. v. Jackson, NY Slip Op 01896 (2d Dep't March 21, 2018)

Here is the decision.

Jurisdictional discovery.

Plaintiff's request for jurisdictional discovery pursuant to CPLR 3211(d) will be denied in the absence of a showing of the possible existence of essential jurisdictional facts that are not yet known.

Davis v. Scottish Re Group Ltd., NY Slip Op 01867 (1st Dep't March 20, 2018)

Here is the decision.

Improperly pled claims.

The court will not consider a claim that was pled only in opposition to the defendant's summary judgment motion, and not in a pleading or an amended pleading.

Demetriades v Royal Abstract Deferred, LLC, NY Slip Op 01640 (1st Dep't March 15, 2018)

Here is the decision.

A defendant's burden on summary judgment in a slip and fall action.

The prima facie showing required of the defendant is determined by plaintiff's allegations of liability. If the complaint does not allege, and the opposition to the motion does not argue, a recurring condition at the site of the accident, the defendant does not have to make a showing as to lack of a recurring condition.

Bader v. River Edge at Hastings Owners Corp., NY Slip Op 01588 (2d Dep't March 14, 2018)

Here is the decision.

A motion for leave to amend the complaint.

The court may overlook plaintiffs' failure to submit a copy of a proposed amended complaint since the proposed amendment was adequately described in their notice of motion and the attorney affirmation.

Dogwood Residential, LLC v. Stable 49, Ltd., NY Slip Op 01574 (1st Dep't March 13, 2018)

Here is the decision.

Rear-end collisions.

A claim that the lead driver came to a sudden stop, without more, is insufficient to rebut the presumption that the trailing driver was negligent and the lead vehicle was not negligent.

Giap v Hathi Son Pham, NY Slip Op 01568 (1st Dep't March 13, 2018)

Here is the decision.

A claim for breach of an express warranty.

A cause of action alleging breach of an express warranty requires evidence that the defendant breached a specific representation made by a manufacturer regarding a product, and that the plaintiff relied upon that representation. A promotional slogan, such as "The Ultimate Driving Machine," is not a specific representation regarding a vehicle upon which a plaintiff could rely.

Aracena v. BMW of N. Am., LLC NY Slip Op 01447 (2d Dep't March 7, 2018)

Here is the decision.

Bus stops.

In order to prevail on a cause of action alleging a common carrier's negligence in stopping a bus, a plaintiff must prove that the stop was unusual and violent, rather than merely one of the sort of jerks and jolts commonly experienced in travel on a city bus. The plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent. 

In seeking summary judgment dismissing the cause of action, common carriers have the burden of establishing, prima facie, that the stop was not unusual and violent. That burden may be satisfied by the plaintiff's deposition testimony as to how the accident occurred.

Dani v. New York City Tr. Auth., NY Slip Op 01452 (March 7, 2018 2d Dep't)

Here is the decision.

Vacating a default.

Petitioner's bare and unsubstantiated assertion of law office failure by prior counsel is insufficient to establish a reasonable excuse for the default. Absent a reasonable excuse, the court does not have to determine whether there is merit to the petition.

Matter of Le Monda v. City of New York, NY Slip Op 01546 (1st Dep't March 8, 2018)

Here is the decision.

Summary judgment in a medical malpractice action.

In an action sounding in medical malpractice, a defendant moving for summary judgment must make a prima facie showing either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the patient's injuries. Once the defendant has made such a showing, the plaintiff, in opposition, must submit its own evidentiary facts or materials, but only as to those elements on which the defendant met the prima facie burden.

Burger v. Das, NY Slip Op 01449 (2d Dep't March 7, 2018)

Here is the decision;

Deposition transcripts.

Pursuant to CPLR 3116(a), a plaintiff's unsigned deposition transcript may be used as though fully signed, where defendant submitted proof that the certified transcript was provided to plaintiff's attorneys for execution and not returned.  An unsigned but certified transcript may be used as an admission, especially where there is no dispute as to the transcript's accuracy.

Luna v. CEC Entertainment, Inc., NY Slip Op 01429 (1st Dep't March 6, 2018)

Here is the decision.

Proceeding pro se.

Where a party unequivocally asserts the right to self-representation, the court must conduct a searching inquiry to ensure that the waiver of the right to counsel is knowing, intelligent, and voluntary. While there is no rigid formula to the court's inquiry, there must be a showing that the party was aware of the dangers and disadvantages of proceeding pro se. In conducting its inquiry, the court should ask questions about the party's  age, education, occupation,  and previous exposure to legal procedures.

Matter of Aleman v. Lansch, NY Slip Op -13-3 (2d Dep't February 28, 2018)

A 90-day demand.

When served with the demand, pursuant to CPLR 3216, a plaintiff must comply by filing a note of issue, or by moving, before the default date, to either vacate the demand or extend the 90-day period.

Austin v. Gould, NY Slip Op 01404 (1st Dep't March 1, 2018)

Here is the decision.

Trivial defects.

A property owner will 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 determining whether a defect is trivial, the court will consider the width, depth, elevation, irregularity, and appearance of the defect along with the time, place and circumstance of the accident.

A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that, under the circumstances, the defect is physically insignificant, and that the defect's characteristics or the surrounding circumstances do not increase the risks it poses. On a sufficient showing, the burden shifts to the plaintiff to establish an issue of fact.

Cortes v. Taravella Family Trust, NY Slip Op 01301 (2d Dep't February 28, 2018)

Here is the decision.

Libel actions.

A factual statement made to someone with a common interest in the subject matter is protected by a qualified privilege.  A conclusory allegation of malice on the speaker's part is insufficient to overcome the privilege.

Matter of Abbitt v. Carrube, NY Slip Op 01394 (1st Dep't March 1, 2018)

Here is the decision.

Binding contracts.

The question of whether a contract is binding does not depend on the parties' subjective intent. Instead, in determining whether the parties entered into a contractual agreement and on what terms, a court must look to the objective manifestations of the parties' intent as expressed in their words and deeds. Put simply, the manifestation of the parties' intention is controlling, not their actual or real intention.

Gator Hillside Vil., LLC v. Schuckman Realty, Inc., NY Slip Op 01178 (2d Dep't February 22, 2018)

Here is the decision.

A corporate officer's liability.

A corporate officer who participates in the commission of a tort may be held individually liable, regardless of whether the corporate veil is pierced.

L.I. City Ventures LLC v Sismanoglou, NY Slip Op 01259 (1st Dep't February 22, 2018)

Here is the decision.