A landowner's duty of care.

While the landowner has a duty to exercise reasonable care in maintaining the property in a safe condition, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous. Neither is there a duty where the allegedly dangerous condition can be recognized simply as a matter of common sense, or where the condition is inherent or incidental to the nature of the property, and can reasonably be anticipated by its users.

Cerrato v. Jacobs, NY Slip Op 05105 (2d Dep't June 26, 2019)

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CPLR 3016(b).

Vague and general allegations that a defendant misled the plaintiff about the defendant's financial abilities and defendant's intent to consummate the transaction are conclusory, and, as such, they are insufficient to plead fraud.

Meiterman v. Corporate Habitat, NY Slip Op 05078 (1st Dep't June 25, 2019)

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CPLR 3025(b).

Pursuant to the statute, leave to amend a pleading "shall be freely given."  The motion should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party.

Bargil Assoc., LLC v. Crites, NY Slip Op 04902 (2d Dep't June 19, 2019)

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Res judicata.

A dismissal based on the statute of limitations is a determination on the merits, and so the dismissal of the prior lawsuit precludes a subsequent action in which the issues are identical to those sought to be litigated in plaintiffs' earlier action.

Cohen v. Glass, NY Slip Op 05065 (1st Dep't June 25, 2019)

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CPLR 2004.

"[T]he court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." The grant of an extension is addressed to the sound discretion of the trial court.  In exercising its discretion, the court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the party opposing the motion.

Kim & Bae, P.C. v. Lee, NY Slip Op 04924 (2d Dep't June 19, 2019)

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Successive motions for summary judgment.

The court considered and decided the motions as they were based on new evidence and they contributed to judicial efficiency, since they relieved the court and the movants of the burden of a plenary trial.

Elihu v. Nicoleau, NY Slip Op 05012 (1st Dep't June 20, 2019)

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Judiciary Law § 21.

A Supreme Court Justice "shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge." However, the fact that summary judgment was granted by the Justice who did not not hear oral argument does not require vacatur of the order where the motion was decided on the basis of a purely legal question.

Marti v. Rana, NY Slip Op 05011 (1st Dep't June 20, 2019)

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CPLR 3211(a)(4).

A party may move to dismiss a cause of action on the ground that there is another action pending between the same parties for the same cause of action in a court of any state or the United States.  The court need not dismiss upon this ground, but may make such order as justice requires.

21st Mtge. Corp. v. Ahmed, NY Slip Op 04899 (2d Dep't June 19, 2019)

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Piercing the corporate veil.

To hold the individual owner-defendant liable for the corporation's actions, the plaintiff must show that (1) the individual owner exercised complete domination over the corporation with respect to the transaction attacked, and (2) that this domination was used to commit a fraud or wrong against the plaintiff, resulting in plaintiff's injury. It is a heavy burden, and the fact that the individual defendant is the corporation's sole shareholder is insufficient.

Kahan Jewelry Corp. v. Coin Dealer of 47th St., Inc., NY Slip Op 05001 (1st Dep't June 20, 2019)

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A Labor Law § 240(1) claim.

At the time of his fall, plaintiff was following his foreman's instructions and, therefore, he was not the sole proximate cause of the accident.

Vucetic v. NYY Langone Med. Ctr., NY Slip Op 04868 (1st Dep't June 18, 2019)

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A claim for an accounting.

The mere existence of a fiduciary relationship gives rise to a claim for an accounting. In the absence of a fiduciary relationship, there must be a showing that there is no adequate remedy at law.

Mullin v. WL Ross & Co. LLC, NY Slip Op 04864 (1st Dep't June 18, 2019)

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Premises liability.

Liability for a dangerous condition on real property depends on ownership, occupancy, control, or special use of the property. A tenant's common-law duty to maintain the premises in a reasonably safe condition is limited to those areas which it occupies and controls, or of which it makes a special use.

Knight v. 177 W. 26 Realty, LLC, NY Slip Op 04685 (2d Dep't June 12, 2019)

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CPLR 213[1].

The statute of limitations for a cause of action seeking to impose a constructive trust is six years. The limitations period starts upon the occurrence of the wrongful act giving rise to a duty of restitution. If the constructive trustee acquires the property wrongfully, the statute begins to run on the date of acquisition. If the constructive trustee wrongfully withholds property acquired lawfully from the beneficiary, the statute begins to run on the date the trustee breaches or repudiates the agreement to transfer the property.

Athanasatos v. Scarpa, NY Slip Op 04670 (2d Dep't June 12, 2019)

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Attorney disqualification.

Absent consent, a lawyer may not advocate in one matter against another client that the lawyer represents in some other matter, even when the matters are wholly unrelated.

City & County Paving Corp. v. Titan Concrete, Inc., NY Slip Op 04776 (1st Dep't June 13, 2019)

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Education Law § 3813[1].

Timely service of a notice of claim is a condition precedent to the commencement of an action against a school district.

Arroyo v. Central Islip USFD, NY Slip Op 04669 (2d Dep't June 12, 2019)

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CPLR 217(1).

An article 78 proceeding challenging a petitioner's termination from government employment must be brought within four months from the date the termination becomes final and binding.

Matter of Irace v. Williams, NY Slip Op 04648 (1st Dep't June 11, 2019)

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A scheme to defraud.

Liability for fraud may be premised on knowing participation in the scheme, even if the participation, standing alone, does not constitute a fraud.

Bashian & Farber, LLP v. Syms, NY Slip Op 04348 (2d Dep't June 5, 2019)

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The doctrine of res judicata.

An order entered upon a party's default in appearing to oppose a motion to dismiss is not a determination on the merits, and, therefore, the doctrine does not apply.

Abdelfattah v. Najar, NY Slip Op 04346 (2d Dep't June 5, 2019)

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Appellate practice.

An order issued sua sponte is not appealable as of right.

New Globaltex Co., Ltd. v. Zhe Lin, NY Slip Op 04456 (1st Dep't June 6, 2019)

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Yellowstone injunctions.

The injunction allows a commercial tenant, when threatened with termination of its lease, to toll the cure period so that, upon an adverse determination on the merits, the tenant may cure the default and avoid a forfeiture of the lease. An application must be made before the termination of the lease and before the expiration of the cure period set forth in the lease and the landlord's notice to cure.

255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 04343 (2d Dep't June 5, 2019)

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Attorneys' fees.

Plaintiff did not waive its right to attorneys' fees by postponing its application until after the merits determination, and a landlord's acceptance of a tenant's payment in satisfaction of a money judgment for rent is not an accord and satisfaction on the issue of attorneys' fees.

Paramount Leasehold, L.P. v. 43rd St. Deli, NY Slip Op 04342 (1st Dep't June 3, 2019)

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Comparative negligence.

While a plaintiff is not required to establish freedom from comparative negligence, the issue may be decided on the plaintiff's motion to dismiss the affirmative defense of comparative negligence.

Wray v. Galella, NY Slip Op 04228 (2d Dep't May 29, 2019)

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The City's duty of care for streets and sidewalks.

Administrative Code of the City of New York § 7-201(c) imposes liability only if its officials have been notified of a defect or hazardous condition at a specified location.  A plaintiff must plead and prove prior written notice as a condition precedent, and neither actual nor constructive notice is sufficient. 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.

De Zapata v. City of New York, NY Slip Op 04132 (2d Dep't May 29, 2019)

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A claim of conversion.

The claim does not lie as against a lawful possessor absent a demand and refusal to return the property.

Mutual Benefits Offshore Fund, Ltd. v. Zeltser, NY Slip Op 04290 )1st Dep't May 30, 2019)

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1944.

A claim for specific performance of a real estate contract.

The elements of the cause of action are that the plaintiff substantially performed its contractual obligations, and was ready, willing and able to perform its remaining obligations; that the defendant was able to convey the property; and that there is no adequate remedy at law.

Breskin v. Moronto, NY Slip Op 04126(2d Dep't May 29, 2019)

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CPLR 3126.

In deciding the motion to dismiss, a conditional order of preclusion is within the ambit of available remedies for the trial court to impose.

Rachimi v. Sacher, NY Slip Op 04275 (1st Dep't May 30, 2019)

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CPLR 5701(a)(2).

No appeal lies from an order that does not decide a motion made upon notice.

Estate of Franzese v. Zear LLC, NY Slip Op 04265 (1st Dep't May 30, 2019)

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CPLR 3215(g)(1).

A defendant who appears in an action is entitled to at least five days notice of the time and place of a motion, including motions for leave to enter a default judgment.  Failure to provide the required notice is a jurisdictional defect that deprives the court of the authority to entertain the motion.

Amaral v. Smithtown News, Inc., NY Slip Op 04122 (2d Dep't May 29, 2019)

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Civil contempt.

In order to find a party in civil contempt, it must be determined that there was in effect a lawful order of the court, clearly expressing an unequivocal mandate, that the party charged had notice of the order and disobeyed it, and that the party's failure to comply with the order prejudiced the rights of another party.

Matter of Gallagher v. Old Guard of the City of N.Y., NY Slip Op 04101 (1st Dep't May 28, 2019)

Here is the decision.