CPLR 2214(a).

Pursuant to the statute, an order to show cause must state the relief demanded and the grounds therefor. However, the court may grant such relief as is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.

Velez v. City of New York, NY Slip Op 05781 (2d Dep't July 24, 2019)

Here is the decision.

General Municipal Law § 50-e.

Prior to commencing an action sounding in tort against a municipality or public corporation, a notice of claim must be served within 90 days after the claim arises. Leave to serve a late notice is denied where the petitioner fails to submit a copy of the proposed notice. or where the proposed notice does not specify the time, place, and manner in which the claim arose, the items of damages or injuries, or the total amount claimed. The petition must include an excuse for failure to timely serve the notice.

Brown v. City of New York, NY Slip Op 05773 (2d Dep't July 24, 2019)

Here is the decision.

CPLR 3013 and 3126.

The plaintiff's request for the disclosure of the defendant's cell phone records is not a mere fishing expedition. The motion papers adequately demonstrate that the request for disclosure may result in relevant evidence, is reasonably calculated to lead to the discovery of information bearing on the plaintiff's claim, and is sufficiently related to the issues to make it reasonable to get them in preparation for trial reasonable.  The defendant's motion for a protective order against production is denied, and the plaintiff's motion to compel production is granted.

Mendives v. Curcio, NY Slip Op 05771 (2d Dep't July 24, 2019)

Here is the decision.

A Labor Law § 240(1) cause of action.

The plaintiff's comparative negligence is not a defense to the claim. Recovery is unavailable only where the plaintiff's own conduct is the sole proximate cause of the accident.

Cruz v. St. Gerard Magella Church, NY Slip Op 05763 (2d Dep't July 24, 2019)

Here is the decision.

CPLR 308.

The affidavit of a process server constitutes prima facie evidence of proper service, and bare and unsubstantiated denials are insufficient to rebut the presumption of service.

McCraley v. Shvartsman, NY Slip Op 05770 (2d Dep't July 24, 2019)

Here is the decision.

Spoliation.

At common law, a party which loses or destroys evidence may be sanctioned under CPLR 3126.  The nature and severity of the sanction depends on factors such as the spoliator's knowledge and intent, proof of an explanation for the loss of evidence, and prejudice to the other party. The party seeking sanctions must demonstrate an obligation to preserve the evidence, a culpable state of mind, and the relevance of the evidence. A culpable state of mind includes ordinary negligence. Where the evidence was intentionally destroyed, its relevance is presumed. Where the evidence was negligently destroyed, its relevance must be established.

Delmur, Inc. v. School Constr. Auth., NY Slip Op 05764 (2d Dep't July 24, 2019)

Here is the decision.

Dog bites.

In order to recover on a theory of strict liability in tort, the plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of those propensities.  Evidence of 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 its having been used as a guard dog.

I.A. v. Mejia, NY Slip Op 05757 (2d Dep't July 24, 2019)

Here is the decision.

Civil conspiracy.

Civil conspiracy is not an independent tort in New York. However, the allegations of conspiracy are deemed part of a cause of action to which they are relevant, such as a claim for fraud, where liability may be premised on knowing participation in a scheme to defraud, even if that participation does not by itself suffice to constitute the fraud. The allegations of  conspiracy enable a plaintiff to connect a defendant with the acts of co-conspirators where otherwise the defendant could not be implicated.

Errant Gene Thereapetics, LLC v. Sloan-Kettering Inst. for Cancer Research, NY Slip Op 05654 (1st Dep't July 23, 2019)

Here is the decision.

Trips and falls.

Proof that a dangerous condition is open and obvious does not preclude a finding of liability, but is relevant to the issue of the plaintiff's comparative negligence.  For summary judgment, a defendant must establish that the condition was both open and obvious and, as a matter of law, was not inherently dangerous.

Karpel v. National Grid Generation, LLC, NY Slip Op 05651 (2d Dep't July 17, 2019)

Here is the decision.

A claim for lack of informed consent.

To establish the cause of action, a plaintiff must prove (1) that the treatment provider unreasonably failed to disclose alternatives and foreseeable risks; (2) that a reasonably prudent patient, if fully informed, would not have undergone the treatment; and (3) that the lack of informed consent is a proximate cause of the injury.

Gilmore v. Mihail, NY Slip Op 05647 (2d Dep't July 17, 2019)

Here is the decision.

An emergency doctrine jury instruction.

If, under some reasonable view of the evidence, an actor was confronted by a sudden and unforeseen occurrence not of the actor's own making, then the reasonableness of the conduct in the face of the emergency is for the jury, which should be appropriately instructed.

Figgiani v. Crociata, NY Slip Op 05645 (2d Dep't July 17, 2019)

Here is the decision.

Fraud and contracts.

The essential elements of a cause of action for fraud are representation of a material existing fact, falsity, scienter, deception, and injury. Mere unfulfilled statements as to what will be done in the future are not actionable as fraud, and the injured party's remedy is to sue for breach of contract. However, where it is alleged that the defendant made misrepresentations of present facts that were collateral to the contract and served as an inducement to enter into the contract, a cause of action alleging fraudulent inducement is not duplicative of a breach of contract claim.

Did-it.com, LLC v. Halo Group, Inc., NY Slip Op 05644 (2d Dep't July 17, 2019)

Here is the decision.

Suing the Port Authority.

A notice of claim must be served on the agency 60 days prior to commencing the action.  The notice must be a sworn writing setting forth the nature of the claim and the resulting damages or injuries.

Conn v. Tutor Perini Corp., NY Slip Op 05643 (2d Dep't July 17, 2019)

Here is the decision.

Vehicle and Traffic Law § 1128[a].

A driver has a duty not to enter a lane of moving traffic until it is safe to do so, and the failure to heed this duty constitutes negligence per se.

Castro v. Hatim, NY Slip Op 05639 (1st Dep't July 16, 2019)

Here is the decision.

CPLR 213[4].

An action to foreclose a mortgage is subject to a six-year statute of limitations. Where the mortgage is payable in installments, a separate cause of action accrues for each unpaid installment, and the limitations period begins on the due-date of each installment.  If a mortgage debt is accelerated, the entire amount is due and the limitations period begins on the entire debt. A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act during the six-year limitations period subsequent to the commencement of the prior foreclosure action.

Wilmington Trust, N.A. v. Dawson, NY Slip Op 05583 (2d Dep't July 10, 2019)

Here is the decision.

Judiciary Law § 470.

A non-resident attorney's failure to comply with the statutory requirement of maintaining a physical office in New York State at the time a complaint is filed does not render the filing a nullity, and dismissal of the action is not required. The party may cure the statutory violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel.

Marina Dist. Dev. Co., LLC v. Toledano, NY Slip Op 05480 (2d Dep't July 9, 2019)

Here is the decision.

CPLR 2005.

While the statute allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect is not accepted as a reasonable excuse.  A claim of law office failure must be supported by detailed allegations of fact explaining the failure," and vague, conclusory, and unsubstantiated excuses are unacceptable.

Wright v. Brooklyn Renaissance Funding Co., LLC, NY Slip Op 05584 (2d Dep't July 10, 2019)

Here is the decision.

CPLR 5015[a][1].

A party seeking to vacate a judgment based on excusable default must demonstrate both a reasonable excuse for the default and a meritorious defense. The preference for deciding cases on the merits does not justify vacating the default judgment where the moving party fails to satisfy the two-prong test.

Leader v. Parkside Group, NY Slip Op 05467 (1st Dep't July 9, 2019)

Here is the decision.

CPLR 214(4).

The statute of limitations for tortious interference with contract and with prospective business relations is three years from the date when the plaintiff first sustains damages. Here, the causes of action accrued on the date when the complaint alleges that plaintiff was terminated from his engagement with a nonparty.

Bandler v. DeYonker, NY Slip Op 05633 (1st Dep't July 11, 2019)

Here is the decision.

Summary judgment and discovery.

Plaintiff's argument that summary judgment should be denied because of a need for further discovery is unavailing since plaintiff only makes conclusory claims that unspecified evidence may be uncovered. While defendants moved for summary judgment just after the issue had been joined, depositions had been taken of all witnesses to the allegedly defamatory statements.

Thome v. Alexander and Louisa Calder Found., NY Slip Op 05625 (1st Dep't July 11, 2019)

Here is the decision.

An insufficient opposition to summary judgment.

In this personal injury action, the property owner-defendants' affidavits were insufficient to show, prima facie, that they did not owe a duty of care to the plaintiff.  The affidavits were conclusory, did not identify the source of their conclusions regarding the corporate relationships and responsibilities, did not refer to or include any supporting documentation or files, did not state that they were based upon personal knowledge, and failed to supply authenticated copies of the relevant leases or contracts.

Andriienko v. Compass Group USA, Inc., NY Slip Op 05506 (2d Dep't July 10, 2019)

Here is the decision.

The continuous representation doctrine.

The doctrine does not save an otherwise time-barred malpractice claim where the defendant-attorney was retained under two separately executed agreements.

Etzion v Blank Rome, LLP, NY Slip Op 05468(1st Dep't July 9, 2019)

Here is the decision.

The advocate-witness rules.

The rules, as stated in 22 NYCRR 1200.0, provide guidance, but they are not binding authority in determining whether a party's attorney should be disqualified during litigation. Pursuant to Rule of Professional Conduct 3.7(a), "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact."  At 3.7[a][3], there is an exception when "disqualification of the lawyer would work substantial hardship on the client." In addition, the rule generally does not apply where the attorney is a litigant.  However, estate representatives represent the interests of the estate's beneficiaries, rather than their own, and so the advocate-witness rule will prevail over a fiduciary-attorney's right to self-representation.

Greenberg v. Grace Plaza Nursing & Rehabilitation Ctr., NY Slip Op 05390 (2d Dep't July 3, 2019)

Here is the decision.

CPLR 7513.

Arbitrators are not permitted to award attorneys' fees, with three limited exceptions: (1) where a statute provides for the award; (2) where the award is authorized by an express provision in the agreement;  (3) where it is unmistakably clear that the parties intended the award.

Steyn v. CRTV, LLC, NY Slip Op 05341 (1st Dep't July 2, 2019)

Here is the decision.

A motion to compel arbitration.

Defendants' motion was denied because plaintiff was not a party to the agreement containing the arbitration clause, and, a separate agreement required that plaintiff's claims be litigated in New York.

BML Props. Ltd. v. China Constr. Am. Inc.,NY Slip Op 05339 (1st Dep't July 2, 2019)

Here is the decision.

A process server's affidavit.

Ordinarily, the affidavit establishes a prima facie case as to the method of service, and gives rise to a presumption of proper service. However, when the defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the process server's affidavit, the prima facie showing is rebutted. The plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing.

Bank of N.Y.Mellon v. Ortiz, NY Slip Op 05378 (2d Dep't July 3, 2019)

Here is the decision.

Contracts for the sale of real property.

To satisfy the statute of frauds, a memorandum evidencing the contract and subscribed by the party to be charged must designate the parties, identify and describe the subject matter, and state all of the essential terms of a complete agreement.

443 Jefferson Holdings, LLC v. Sosa, NY Slip Op 05376 (2d Dep't July 3, 2019)

Here is the decision.

A dismissed malpractice claim.

Since damages in a legal malpractice case are designed to make the injured client whole, a plaintiff who fails to plead actual damages fails to state a claim.

Miami Capital, LLC v. Hurwitz, NY Slip Op 05332 (1st Dep't July 2, 2019)

Here is the decision.

A guarantor's liability.

The guarantee states that it is absolute and unconditional, and that, in pertinent part, it "shall be unconditional and irrevocable, irrespective of . . . (a) the genuineness, validity or enforceability of any of the Loan Documents . . . or (g) any other circumstance, occurrence or condition . . . which might otherwise constitute a legal or equitable defense."  The guarantor-defendant's claim of fraud in the inducement is barred.

Suttongate Holdings Ltd. v. Lanconm Mgt. N.V., NY Slip Op 05196 (1st Dep't June 27, 2019)

Here is the decision.

Long-arm jurisdiction.

California has jurisdiction over the non-resident defendants, based on their soliciting plaintiff in California by phone, exchanging drafts of the investor agreement by email, emailing status reports of the proposed venture, and flying to California to meet with the plaintiff.

Brothers Pac Four, LLC v. War Entertainment, LLC, NY Slip Op 05195 (1st Dep't June 27, 2019)

Here is the decision.

An alleged violation of disciplinary rules.

There is no private right of action against an attorney or law firm for alleged violations of the Code of Professional Responsibility or the disciplinary rules.

Karimian v. Karlin, NY Slip Op 05193 (1st Dep't June 27, 2019)

Here is the decision.