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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.