Judiciary Law § 487.

Under Judiciary Law § 487, an attorney who is guilty of any deceit or collusion, or who consents to any deceit or collusion, with the intent to deceive the court or any party, is liable to the injured party for treble damages. A claim of a statutory violation requires an allegation of an intent to deceive, whereas a legal malpractice claim is based on negligent conduct.

Aristakesian v. Ballon Stoll Bader & Nadler, P.C., NY Slip Op 07084 (2d Dep't October 24, 2018)

Here is the decision.

The duty to maintain public sidewalks.

Under Administrative Code of City of NY § 7-210, an abutting property owner has a duty to maintain the public sidewalk, but the City is responsible for maintaining any part of the sidewalk that is within a designated bus stop location.

McCormick v. City of New York, NY Slip Op 07175 (1st Dep't October 23, 2018)

Here is the decision.

Confirmation of a referee's report.

The report will be confirmed when the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility.

33-37 Farrington, LLC v. Global Universal Group, Ltd., NY Slip Op 07081(2d Dep't October 24, 2018)

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Vacating a judgment.

A court's inherent discretionary power to vacate judgments is not limited to the grounds specified in CPLR 5015(a).

Wansdown Props. Corp., N.V. v. Azari, NY Slip Op 07048 (1st Dep't October 23, 2018)

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Duress as a defense in a contracts action.

The threatened exercise of a legal right does not constitute duress.

Nuntnarumit v. Lyceum Partners LLC, NY Slip Op 07041 (1st Dep't October 23, 2018)

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Deeming an answer timely filed.

A demonstration of ongoing settlement negotiations between a plaintiff and the defendant's insurance carrier is a reasonable excuse for the defendant's delay in answering. The court may providently exercise its discretion in denying default judgment and accepting the defendant's answer, deeming it timely filed, nunc pro tunc.

Manne v. Berkowits Sch. of Electrolysis, Inc. NY Slip Op 06997 (1st Dep't October 18, 2018)

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A motion to change venue.

Pursuant to CPLR 510(2), the movant must produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be had in the county where venue was properly placed. The motion is at the sound discretion of the trial court, and its determination will not be reversed absent an improvident exercise of discretion.

Sowell v. Gansburg, NY Slip Op 06958 (2d Dep't October 17, 2018)

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An attorney's conflict of interest.

An attorney may not undertake a representation where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the fiduciary obligations of the attorney-client relationship. The attorney is in violation of Rule of Professional Conduct 1.7, and is not entitled to legal fees.

Saint Annes Dev. Co. v. Batista, NY Slip Op 06956 (2d Dep't October 17, 2018)

Here is the decision.

Comparative negligence.

A plaintiff is not required to demonstrate freedom from comparative negligence in order to be entitled to summary judgment as to the defendant's liability.

Chan v. Choi, NY Slip Op Op 06857 (1st Dep't October 16, 2018)

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Opposing a motion for summary judgment.

Mere conclusory allegations, expressions of hope, or unsubstantiated assertions are insufficient to defeat a motion for summary judgment.

Caputo v. Citimortgage, Inc.NY Slip Op 06713 (2d Dep't October 10, 2018)

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Moving to vacate a default.

A party is precluded from moving to vacate its default on grounds asserted in a prior motion that was denied, and from which no appeal was taken, or on grounds that were apparent when the party made the prior motion but which were not asserted therein.

A.G. Parker, Inc. v. 246 Rochester Partners, LLC, NY Slip Op 06711 (2d Dep't October 11, 2018)

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Adverse possession.

In order to establish adverse possession, a plaintiff must demonstrate, by clear and convincing evidence, that its possession has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual for a period of 10 years, pursuant to RPAPL 501[2] and CPLR 212[a].

168-170 Flushing Ave, LLC v. February 22, LLC, NY Slip Op 06710 (2d Dep't October 10, 2018)

Here is the decision.

Skiing accidents.

 General Obligations Law § 18-107 states that, "[u]nless otherwise specifically provided in this article, the duties of skiers, passengers, and ski operators shall be governed by common law."  The common law applies where plaintiffs allege inadequate padding of defendant's snowmaking pole, as the statute does not specifically address this circumstance.

Madsen v. Catamount Ski Resort, NY Slip Op 06794 (1st Dep't October 11, 2018)

Here is the decision.

Ambiguous contracts.

If the contract is ambiguous, it cannot be construed as a matter of law, and a summary judgment motion will be denied.

Funk v. Seligson, Rothman & Rothman, Esqs., NY Slip Op 06614 (1st Dep't October 4, 2018)

Here is the decision.

Discovery of tax returns.

A party seeking disclosure of tax returns must make a strong showing that the information contained in the returns is necessary and unavailable from other sources.  However, the underlying financial information which is contained in documents other than tax returns, such as in Form K-1s, is discoverable.

Norddeutsche Landesbank Girozentrale v. Tilton, NY Slip Op 06633 (1st Dep't October 4, 2018)

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The doctrine of equitable mortgage.

The doctrine is inapplicable where there is a legal written mortgage.

21st Mtge. Corp. v. Nweke, NY Slip Op 06509 (2d Dep't October 3, 2018)

Here is the decision.

Service of process.

Ordinarily, a process server's affidavit of service constitutes prima facie evidence of proper service. However, the affidavit must be an affidavit of service, and not just an affidavit of due diligence in attempting service. Absent service, a default judgment is a nullity.

2004 McDonald Ave. Corp. v. KGYM Holdings Group, Inc., NY Slip Op 06508 2d Dep't (October 3, 2018)

Here is the decision.

Court holiday.

Discovery sanctions.

The order granting plaintiffs' motion to the extent of deeming all liability issues resolved in their favor was reversed, and the motion denied. Plaintiffs failed to establish that defendants' conduct during discovery was willful, contumacious, or in bad faith. When the motion was made, defendants were in violation of a single court order.  The court improvidently exercised its discretion in imposing the sanction nine months after plaintiffs brought the motion, when discovery had been completed and the note of issue had been filed.

Butler v. Knights Collision Experts, Inc., NY Slip Op 06474 (1st Dep't October 2, 2018)

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The doctrine of judicial estoppel.

A party who assumed a certain position in a prior proceeding and secured a favorable ruling may not advance a contrary position in another action simply because its interests have changed.

Herman v. 36 Gramercy Park Realty Assoc., LLC, NY Slip Op 06473 (1st Dep't October 2, 2018)

Here is the decision.

A dismissed claim of promissory estoppel.

The claim is barred by the alleged existence of a contract.

ID Beauty S.A.S. v. Coty Inc. Headquarters, NY Slip Op 06322 (1st Dep't September 27, 2018)

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The storm in progress rule.

A property owner is not liable for accidents resulting from the accumulation of snow and ice for a sufficient period of time following the storm so that the owner can ameliorate the hazards.  On a motion for summary judgment, the question of whether a reasonable time has elapsed may be decided as a matter of law. A plaintiff's speculative deposition testimony will not defeat the motion.

Autieri v. Longi, NY Slip Op 06222 (2d Dep't September 26, 2018)

Here is the decision.

Judiciary Law § 487 and the recovery of costs.

Pursuant to the statute, a plaintiff may recover only the excess legal costs that were proximately caused by the attorney's alleged deceit.

Melcher v. Greenberg Traurig LLP, NY Slip Op 06310 (1st Dep't September 27, 2018)

Here is the decision.