Frivolous conduct.

The court rule, codified at 22 NYCRR 130-1.1, authorizes a court to exercise its discretion in awarding reasonable attorney's fees resulting from frivolous conduct. Conduct is frivolous if it is completely without merit in law, or advances false statements of material facts. In determining whether conduct is frivolous, the court will consider circumstances such as the time available for investigating the legal or factual bases of the conduct, and whether the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.

Matter of Sottilare v. Fahner, NY Slip Op 02792 (2d Dep't April 25, 2018)

Documentary evidence.

A factual affidavit is not documentary evidence within the meaning of CPLR 3211(a)(1).

Celentano v. Boo Realty, LLC, NY Slip Op 02882 (1st Dep't April 26, 2018)

Here is the decision.

Failure to vacate a default.

Having failed to vacate the default, the defendant is deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from those allegations.

Bank of N.Y. Mellon Trust Co. v. Loodus, NY Slip Op 02591 (2d Dep't April 18, 2018)

Here is the decision.

Parol evidence in a contracts action.

Parol evidence of the parties' contrary intent is irrelevant in the face of the unambiguous governing documents.

P360 Spaces LLC v. Orlando, NY Slip Op 02749 (1st Dep't April 24, 2018)

Here is the decision.

A motion to dismiss.

Pursuant to CPLR 3211(a)(4), the court may dismiss an action if there is another action pending, in any court, seeking the same relief.

Ember v. Denizard, NY Slip Op 02715 (1st Dep't April 19, 2018)

Here is the decision.

Labor Law § 240(1).

The statute protects workers from elevation-related hazards while they are involved in the erecting, demolishing, repairing, altering, painting, cleaning, or pointing of a building or structure, or acts ancillary to those activities. Where the worker is engaged in routine maintenance, the statute is inapplicable.

Garnett v. Wappingers Cent. Sch. Dist., NY Slip Op 02600 (2d Dep't April 18, 2018)

Here is the decision.

Workers' Compensation.

An employee who is entitled to receive workers' compensation benefits may not sue the general employer or special employer for injuries sustained in the course of employment, pursuant to Workers' Compensation Law §§ 11, 29[6]. A special employee is one who is transferred for a limited time, of whatever duration, to the service of another employer.  The determination as to whether there is a special employment relationship is generally an issue of fact requiring consideration of factors such as who controls and directs the manner of the employee's work; who is responsible for payment of wages and benefits; who furnishes equipment; who has the right to discharge the employee; and whether the work being performed was in furtherance of the special employer's or the general employer's business. General employment is presumed to continue, and the presumption can only be rebutted by a clear demonstration of surrender of control by the general employer and assumption of control by the special employer.

Dube v. County of Rockland, NY Slip Op 02597 (2d Dep't April 18, 2018)

Here is the decision.

Statute of frauds and guarantees.

New York's statute of frauds requires that an agreement constituting a special promise to answer for another's debt, default, or miscarriage be memorialized in a writing signed by the party to be charged, pursuant to General Obligations Law § 5-701[a][2]. Notwithstanding the statute, an oral promise to guarantee another's debt may be enforced if the plaintiff proves that the promise is supported by new consideration moving to the promisor and beneficial to the promisor, and that the parties' intention is that the promisor be a principal debtor primarily liable.

Reddy v. Mihos, NY Slip Op 02565 (1st Dep't April 17, 2018)

Here is the decision.

A negligent hiring claim.

When it is determined that the employee was acting within the scope of employment, a negligent hiring claim must be dismissed.

Kerzhner v G4S Govt. Solutions, Inc., NY Slip Op 02559 (1st Dep't April 12, 2018)

Here is the decision.

Binding stipulations.

Only attorneys who are authorized to enter into binding stipulations may appear at pretrial conferences, pursuant to 22 NYCRR 202.26[e] and 22 NYCRR 202.12[b].  Therefore, an attorney's presence at a pretrial conferences is an implied representation by the attorney's client to the other side that the attorney has authority to bind the client to a stipulation.  A stipulation made by the attorney may bind a client even where it exceeds the attorney's actual authority if the attorney had apparent authority to enter into the stipulation.

Chae Shin Oh v. Jeannot, NY Slip Op 02446 (2d Dep't April 11, 2018)

Here is the decision.

The continuous representation doctrine.

For the doctrine to apply, the representation must be specifically related to the subject matter underlying the malpractice claim, and there must be a mutual understanding of need for further services in connection with that same subject matter.  A vague ongoing representation is insufficient to invoke the doctrine.

Davis v. Cohen & Gresser, LLP, NY Slip Op 02542 (1st Dep't April 12, 2018)

Here is the decision.

Establishing proper service.

While an executed affidavit of service attesting to personal delivery upon a defendant is prima facie evidence of proper service, a sworn nonconclusory denial of service by a defendant is sufficient to dispute the veracity or content of the affidavit, requiring a traverse hearing.

Bank of Am., N.A. v Diaz, NY Slip Op 02421 (1st Dep't April 10, 2018)

Here is the decision.

Leave to amend a pleading.

In the absence of prejudice or surprise to the opposing party, leave will be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit, pursuant to CPLR 3025[b]. Lateness alone is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine.

Moran Enters. v. Hurst, NY Slip Op 02321 (2d Dep't April 4, 2018)

Here is the decision.

A false arrest and malicious prosecution claim

Dismissal was affirmed, as  defendants submitted competent proof that, during the execution of the search warrant, the plaintiff was in constructive possession of drugs and paraphernalia in plain view in the living room of the apartment where plaintiff was arrested, and that the police had probable cause to make the arrest.

Anderson v. City of New York, NY Slip Op 02396 (1st Dep't April 5, 2018

Here is the decision.

Labor Law § 240(1).

Comparative negligence is not a defense to a Labor Law § 240(1) claim.

Harrigan v. G-Z/10UNP Realty, LLC, NY Slip Op 02393 (1st Dep't April 5, 2018)

Here is the decision.

A legal malpractice claim.

Despite settlement of the underlying action, the claim is viable  if the plaintiff alleges that settlement of the action was effectively compelled by the mistakes of counsel.

Gad v. Sherman, NY Slip Op 02316 (2d Dep't April 4, 2018)

Here is the decision.

Aiding and abetting breach of a duty of fidelity.

There may be liability for aiding and abetting only when the defendant provides substantial assistance to the primary violator.  There is substantial assistance when a defendant affirmatively assists, helps to conceal, or fails to act when required to do so, thereby enabling the breach to occur. The claim will be dismissed if the plaintiff alleges that the defendant did nothing more than offer competitive compensation.  Where the alleged conduct is neither wrongful nor improper, the cause of action does not lie.  

BGC Partners, Inc. v. Avison Young (Canada) Inc., NY Slip Op 02290 (1st Dep't April 3, 2018)

Here is the decision.

Labor Law § 241(6).

The statute imposes on owners and contractors a nondelegable duty of reasonable care to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which there is construction, excavation or demolition work.  Courts have generally held that the statutory scope is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work expansively, as "[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures."

De Jesus v. Metro-N. Commuter R.R., NY Slip Op 02150 (2d Dep't March 28, 2018)

Here is the decision.

Clear and convincing evidence.

Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened.  As evidence, it is neither equivocal nor open to opposing presumptions.

Matter of Seon v. New York State Dept. of Motor Vehs., NY Slip Op 02240 (March 29, 2018)

Here is the decision.

Custody of the child.

The essential consideration in determining custody is the best interests of the child, and neither parent has a prima facie right to custody. In determining a custody arrangement, the court must consider factors such as the quality of the home environment, the parental guidance the custodial parent provides, each parent's ability to provide for the child's emotional and intellectual development, each parent's financial status and ability to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent. The court must consider the totality of the circumstances, and no one factor is determinative.

Matter of Bongocan v. Javier L., NY Slip Op 02148 (2d Dep't March 28, 2018)

Here is the decision.

Proper service.

A process server's affidavit constitutes prima facie evidence of proper service. To vacate a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the affidavit. A sworn denial of receipt of service containing detailed and specific contradiction of the allegations in the process server's affidavit may be sufficient to defeat the presumption of proper service.

HSBC Bank USA v. Whitter, NY Slip Op 02146 (2d Dep't March 28, 2018)

Here is the decision.