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.