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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

Memorial Day.

The continuing wrong doctrine.

The doctrine may only be predicated on continuing unlawful acts, and not on the continuing effects of earlier unlawful conduct. The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs.

Gibbons v. Grondahl, NY Slip Op 03646 (1st Dep't May 22, 2018)

Here is the decision.

Statute of limitations in a foreclosure action.

An action to foreclose a mortgage is subject to a six-year statute of limitations, pursuant to CPLR 213[4]. The limitations period begins to run when the mortgagee or its predecessor elects to accelerate the mortgage. If the mortgage is payable in installments, the limitations period begins as to the entire debt.

DLJ Mtge. Capital, Inc. v. Hirsh, NY Slip Op 03505 (2d Dep't May 16, 2018)

Here is the decision.

A hospital's vicarious liability.

The general rule is that a hospital may not be held vicariously liable for the acts of a physician who is not an employee of the hospital, but, instead, is one of a group of independent contractors. However, a hospital may be vicariously liable if a nonemployee physician acted as its agent, or if it exercised control over the physician.

Castro v. Durban, NY Slip Op 03503 (2d Dep't May 17, 2018)

Here is the decision.

Falling object liability under the Labor Law.

Liability under § 240(1) is not limited to cases in which the falling object is being hoisted or secured. It also applies where the plaintiff demonstrates that, at the time the object fell, it required securing.  However, the statute does not automatically apply simply because an object fell and injured a worker, and a plaintiff must show that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute.  While a plaintiff is not required to present evidence as to which particular safety devices would have prevented the injury, the risk requiring a safety device must be foreseeable and inherent in the work being done.

Carlton v. City of New York, NY Slip Op 03500 (2d Dep't May 16, 2018)

Here is the decision.

A fall at a construction site.

A fall through an unguarded opening in the floor of a construction site invokes Labor Law § 240(1) if an adequate safety device was not provided. A safety line and harness may be adequate for a person working over an open area or near an elevated edge. However, summary judgment is precluded where, as here, the record shows that plaintiff was wearing a harness and lanyard bu there are triable issues as to whether there were static lines for him to safely tie off.

Maman v. Marx Realty & Improvement Co., Inc., NY Slip Op 03614 (1st Dep't May 17, 2018)

Here is the decision.

Liability for a dog bite.

If the dog that bit plaintiff had no known vicious propensities, no liability will attach to the dog owner or to the veterinary hospital where the dog bite occurred.

Easley v. Animal Med. Ctr., NY Slip Op 03480 (1st Dep't May 15, 2018)

Here is the decision.

An expert's opinion.

An expert's opinion is unavailing if it is unsupported by reference to any authority, standard, or other corroborating evidence.

Pena v. City of New York, NY Slip Op 03477 (1st Dep't May 15, 2018)

Here is the decision.

Setting aside a jury verdict.

Pursuant to CPLR 4404(a), the verdict will be set aside if, based on the evidence presented at trial, there is no valid line of reasoning and permissible inferences that could possibly lead rational persons to the jury's conclusion.

Bligen v New York City Tr. Auth., NY Slip Op 03432 (1st Dep't May 10, 2018)

Here is the decision.

The death of a party.

The death of a party divests the court of jurisdiction, and automatically stays proceedings pending the substitution of a legal representative for the decedent, pursuant to CPLR 1015(a). Any determination rendered without such a substitution is a nullity.

American Airlines Fed. Credit Union v. Costello, NY Slip Op 03335 (2d Dep't May 9, 2018)

Here is the decision.

A defamation claim.

An expression of pure opinion is not actionable, no matter how vituperative or unreasonable it is. In determining whether a statement is pure opinion, the court will consider (1) whether the specific language has a precise meaning that is readily understood; (2) whether the statement is capable of being proven true or false; and (3) whether, in context, the reader or listener would understand that the statement is an expression of opinion, not fact.

Trump Vil. Section 4, Inc. v. Bezvoleva, NY Slip Op 03389 (2d Dep't May 9, 2018)

Here is the decision.

Statutory attorneys' fees.

Real Property Law § 234 provides that a tenant may be eligible to recover attorneys' fees from a landlord where the governing lease permits fees and a breach of the lease is alleged. Here, no breach of the lease is alleged. The plaintiffs seek to reform the lease so as to remove the provision granting the defendants exclusive use of the backyard, and seek prospective declaratory and injunctive relief in that regard. The statute is not applicable.

Mulholland v. Moret, NY Slip Op 03375 (2d Dep't May 9, 2018)

Here is the decision.

Affidavits and summary judgment.

A defendant's affidavit that appears to have been submitted in order to avoid the consequences of a prior admission is insufficient to defeat the plaintiff's motion.

Martinez v. WE Transp. Inc., NY Slip Op 03311 (1st Dep't May 8, 2018)

Here is the decision.

Recovery of a real estate fee.

A plaintiff-real estate broker may not bring or maintain an action to recover a fee if he or she did not have a broker's license.

Kaspi v .Wainstein, NY Slip Op 03227 (1st Dep't May 3, 2018)

Here is the decision.

Legal malpractice.

Defendant's summary judgment motion to dismiss will be denied if defendant fails to demonstrate, as a matter of law, that the alleged conduct was not negligence but a reasonable strategic decision.

Roth v. Ostrer, NY Slip Op 03218 (1st Dep't May 3, 2018)

Here is the decision.

Oral agreements.

If the parties do not intend that an agreement will be binding until it is reduced to writing and signed, they are not bound and may not be held liable until the agreement has been written out and signed. However, if they intended to be bound by an oral agreement, a mere failure to reduce their promises to writing is immaterial.  Where a contract's substantial terms have been agreed on, the fact that the parties intended that the contract should be formally drawn up and put in writing does not leave the transaction incomplete and without binding force in the absence of a positive agreement that it should not be binding until reduced to writing and formally executed.

223 Sam, LLC v. 223 15th St., LLC, NY Slip Op 03118 (2d Dep't May 2, 2018)

Here is the decision.

Dismissal of Labor Law claims.

 Since the debris removal giving rise to plaintiff's injury was not within the scope of authority or work delegated to the defendant, it may not be liable to plaintiff under Labor Law §§ 240(1) or 241(6) as a statutory agent of the general contractor.

Santiago v. 44 Lexington Assoc., LLC, NY Slip Op 03229 (1st Dep't May 3, 2018)

Here is the decision.

Non-profits and fiduciary duty.

The directors of a not-for-profit corporation have the fiduciary obligation to act on behalf of the corporation in good faith and with reasonable care so as to protect and advance the corporation's interests.

Nachbar v. Cornwall Yacht Club, NY Slip Op 02795 (2d Dep't April 25, 2018)

Here is the decision.

Extending the time for a notice of claim.

Pursuant to General Municipal Law § 50-e(5), a court may exercise its discretion to extend the time to serve a notice of claim. In determining whether to grant the extension, the court must consider whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after it arose, or within a reasonable time thereafter.  The court must also consider all other relevant circumstances, including whether the petitioner has demonstrated a reasonable excuse for the failure to serve a timely notice, and whether the delay will substantially prejudice the public corporation in maintaining a defense on the merits.

Wilson v. City of New York, NY Slip Op 02794 (2d Dep't, April 25, 2018)

Here is the decision.

Res ipsa loquitur.

When the court determines that the doctrine applies, the lack of an allegation of actual or constructive notice is not fatal to the plaintiff's claim, as notice is inferred.

Mejia v. Delgado, NY Slip Op 02893 (1st Dep't April 26, 2018)

Here is the decision.