A motion to compel the plaintiff to accept an answer.

Pursuant to CPLR 3012(d), where there is a meritorious defense and no showing of either willfulness or prejudice as a result of the delay, the policy of resolving disputes on the merits militates in favor of granting the motion.

Cantave v. 170 W. 85 St. Hous. Dev. Fund Corp., NY Slip Op 06196 (1st Dep't September 25, 2018)

Here is the decision.

Settlement agreements.

An agreement between the parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding unless it is in a writing subscribed by the party or the party's attorney or reduced to the form of an order and entered, pursuant to CPLR 2104. A stipulation of settlement signed by an attorney may bind the client even if it exceeds the attorney's actual authority if the attorney had apparent authority to act on the client's behalf.

Anghel v. Utica Mut. Ins. Co., NY Slip Op 06073 (2d Dep't September 19, 2018)

Here is the decision.

Standing to sue as a third-party beneficiary.

A plaintiff is an intended third-party beneficiary of an agreement that explicitly refers to the plaintiff and grants it enforceable rights. Accordingly, the agreement's boilerplate exclusion of third-party beneficiaries is without effect, and the action may not be dismissed for lack of standing.

MPEG LA, LLC v. Samsung Elecs. Co., Ltd., NY Slip Op 06147 (1st Dep't September 20, 2018)

Here is the decision.

A building owner's duty of care.

A building owner-defendant's compliance with applicable building codes is not dispositive of whether the owner has breached the common-law duty of care.

Sussman v. MK LCP Rye LLC, NY Slip Op 06143 (1st Dep't September 20, 2018)

Here is the decision.

Appellate practice.

Pursuant to CPLR 5520(c), the Appellate Division has the discretion to deem valid a notice of appeal from an order, and not the ensuing final judgment, and address the merits of the appeal.

Gem Holdco, LLC v. Changing World Tech., L.P., NY Slip Op 06139 (1st Dep't September 20, 2018)

Here is the decision.

Waiver of a defense.

A defendant waives a statute of limitations defense by failing to raise it in an answer or in a timely pre-answer motion to dismiss, pursuant to CPLR 3211(a)(5) and (e).

21st Mtge. Corp. v. Palazzotto, NY Slip Op 06072 (2d Dep't September 19, 2018)

Here is the decision.

Liability under the Labor Law.

Labor Law § 240(1) is construed as liberally as possible in order to accomplish its purpose of protecting workers. The statute imposes a nondelegable duty on owners and contractors to protect workers from the risks associated with the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure, and it puts the ultimate responsibility on them to provide scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other protective devices. The failure to do so resulting in injury to a worker engaged in the type of work covered by the statute establishes an owner or contractor's liability as a matter of law.  An owner is liable under the statute even where it exercises no control over work being performed by a contractor.

Mananghaya v. Bronx-Lebanon Hosp. Ctr., NY Slip Op 06061 (1st Dep't September 13, 2018)

Here is the decision.

A derivative claim.

When a plaintiff's alleged money damages flow from harm to the corporate entity, the claim is derivative, not direct.

Pokoik v. Norsel Realties, NY Slip Op 06056 (1st Dep't September 14, 2018)

Here is the decision.

Landlord fraud and rent regulation.

Where the landlord has engaged in fraud in initially setting the rent or in removing an apartment from rent regulation, the court may examine the apartment's rental history, even beyond the statutory period set forth in CPLR 213-a.

Kreisler v. B-U Realty Corp., NY Slip Op -6-54 (1st Dep't September 13 2018)

Here is the decision.

A Yellowstone injunction.

The purpose of the injunction is to maintain the status quo so that, when confronted by the threat of termination, a commercial tenant may protect its investment in the leasehold. The injunction stays the tolling of the cure period, and, if there is an adverse determination on the merits, the tenant may cure the default. To secure the injunction, the tenant must demonstrate (1)  a commercial lease; (2) the landlord's notice of default, notice to cure, or threat to terminate; (3) that the lease has not been terminated and the cure period has not expired; and (4) the ability to cure by any means short of vacating the premises.  A plaintiff demonstrates that it has the ability to cure by establishing in its motion papers that it is willing to repair any defective condition found by the court, and by providing proof of its effort in addressing the default listed on the notice to cure.

146 Broadway Assoc., LLC v. Bridgeview at Broadway, LLC, NY Slip Op 05990 (2d Dep't September 12, 2018)

Here is the decision.

Service.

Pursuant to CPLR 317, a defendant who has been served with a summons other than by personal delivery may defend the action on the court's finding that the defendant did not personally receive notice of the summons in time to defend, and has a potentially meritorious defense.  Service on a corporation through the secretary of state is not personal delivery. The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action.

Stevens v. Stepanski, NY Slip Op 05954 (2d Dep't August 29, 2018)

Here is the decision.

Limitations period in a foreclosure action.

Pursuant to CPLR 213(4), an action to foreclose a mortgage is governed by a six-year statute of limitations.  Once the mortgage debt is accelerated, even if it is payable in installments, the entire amount is due, and the statutory period begins to run on the entire debt.

Yadegar v Deutsche Bank Natl. Trust Co., NY Slip Op 05057 (2d Dep't August 29, 2018)

Here is the decision.

Administrative law judges.

The decisions of administrative law judges are not entitled to deference by courts.

Morse v. Fidessa Corp., NY Slip Op 05975 (1st Dep't September 6, 2018)

Here is the decision.

Proper service.

A process server's affidavit is prima facie evidence of proper service.

Margarella v. Ullian, NY Slip Op 05926 (2d Dep't August 29, 2018)

Here is the decision.

Strict liability for dog bites.

To recover on a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities, and that the owner knew or should have known of the dog's propensities. Vicious propensities include the propensity to do any act that might endanger the safety of persons or the property of others. Evidence tending to prove that a dog has vicious propensities includes a prior attack; the dog's tendency to growl, snap, or bare its teeth; the manner in which the dog was restrained; and a proclivity to act in a way that puts others at risk.

Lipinsky v. Yarusso, NY Slip Op 05925 (2d Dep't August 29, 2018)

Here is the decision.

General Obligations Law § 17-101.

The statute revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt. To constitute a valid acknowledgment, the writing must be signed; it must must recognize an existing debt; and it must contain nothing inconsistent with the debtor's intention to pay the debt.

Karpa Realty Group, LLC v. Deutsche Bank Natl. Trust Co., NY Slip Op 05921 (2d Dep't August 29, 2018)

Here is the decision.

Claims of negligent hiring or supervision.

A necessary element of the cause of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.  There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.

KM v. Fencers Club, Inc., NY Slip Op 05923 (2d Dep't August 29, 2018)

Here is the decision.

Pleading a joint venture agreement.

In order to properly plead the agreement, a plaintiff must allege acts manifesting the parties' intent to be associated as joint venturers; mutual contribution to the joint undertaking through a combination of property, financial resources, effort, skill or knowledge; a measure of joint proprietorship and control over the enterprise; and a provision for the sharing of profits and losses. Under both common law and statutory law, a contract of  joint venture or partnership must include a mutual promise to share in the profits of the business and submit to the burden of making good the losses.

Slabakis v. Schik, NY Slip Op 05962 (1st Dep't August 30, 2018)

Here is the decision.

Spoliation.

When a party negligently loses or intentionally destroys key evidence, depriving the other party of a claim or defense, the court may direct the striking of its pleading.  In the absence of willful or contumacious conduct, the court must consider the prejudice resulting from the spoliation. If the other party is still able to establish or defend the claim, a less severe sanction is appropriate.

Francis v. Mount Vernon Bd. of Educ., NY Slip Op 05916 (2d Dep't August 29, 2018)

Here is the decision.

Court holiday.