CPLR 5015(a).

A defendant seeking to vacate a judgment under this provision must demonstrate a reasonable excuse for the default and a potentially meritorious defense.

Nationstar Mtge., LLC v. Brignol, NY Slip Op 02045 (2d Dep't March 25, 2020)

Here is the decision.

The right to a jury trial.

A plaintiff is not entitled to a jury trial where he seeks to enforce a judgment against a party other than the judgment debtor, as that is an equitable claim.

Jonke v. Foot Locker Inc., NY Slip Op 02113 (1st Dep't March 16, 2020)

Here is the decision.

A conditional order of dismissal.

Pursuant to CPLR 3126(3), and in light of the plaintiff's history of noncompliance with court orders, the motion court providently exercised its discretion in issuing the order requiring her to appear for a deposition. On her motion to renew, the plaintiff failed to submit new facts, pursuant to CPLR 2221[e][2]), that is., facts that existed but were unknown to her at the time defendants made their motions. Instead, she submitted facts that developed after issuance of the conditional order that decided the prior motions.

Mehler v. Jones, NY Slip Op 02103 (1st Dep't March 26, 2020)

Here is the decision.

Sanctions for spoliation.

For sanctions, the movant must establish that the other party had an obligation to preserve the evidence; that the evidence was destroyed with a culpable state of mind; and that the evidcnce was relevant to the party's claim or defense. In the context of spoliation, a party can be deemed to have had a culpable state of mind for ordinary negligence, but the sanction of striking a pleading is not warranted unless the evidence is crucial and the spoliator's conduct evinces some higher degree of culpability. Striking a pleading for spoliation due to ordinary negligence is appropriate where the movant establishes that the evidence was its sole means of defending the claims; its defense was otherwise fatally compromised by the spoliation; or it was prejudiced to the point of not being able to defend.

Rossi v. Doka USA, Ltd., NY Slip Op 02098 (1st Dep't March 26, 2020)

Here is the decision.

Property liens.

CPLR 5203(a) gives priority to a judgment creditor over subsequent transferees with regard to the debtor's real property where the judgment was docketed with the county clerk. Pursuant to CPLR 5018(c), a judgment is docketed when the clerk makes an entry "under the surname of the judgment debtor, . . . consist[ing] of . . . the name and last known address of [the] judgment debtor." Once docketed, the judgment becomes a lien on the property. Here, the judgment was not docketed under the correct surnames of the title owners of the property, and, therefore, there is no valid lien.

Kunin v. Guttman, NY Slip Op 02044 (2d Dep't March 25, 2020)

Here is the decision.

CPLR 2101 (b).

The statute provides that "[w]here an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate." Here, the Appellate Division found that evidence in the record, including the deposition testimony of an interpreter who was hired by the defendants to assist in the preparation of the affidavits of merit, established that those affidavits were not prepared in accordance with the statutory requirements or the decisional law cited in the Supreme Court's order. The Appellate Division affirmed the Supreme Court's determination granting those branches of the plaintiff's motion which were to dismiss the amended counterclaim and to cancel the notice of pendency.

Testa v. Testa, NY Slip Op 01947 (2d Dep't March 18, 2020)

Here is the decision.

Excusing a default.

The motion court providently exercised its discretion in denying the motion to dismiss the action pursuant to CPLR 3215(c). Plaintiff provided a reasonable excuse for its delay in seeking a default judgment, namely, an inadvertent error by plaintiff's counsel in moving for a default judgment against the "non-appearing" defendants only. The record otherwise demonstrates that plaintiff did not abandon the action.

Wilmington Sav. Fund Socy. v. Hyo Choong Sung, NY Slip Op 01956 (1st Dep't March 19, 2020)

Here is the decision.

Spoliation.

Plaintiff's motion for sanctions was granted to the extent of imposing an adverse inference charge. Defendants had an obligation to preserve the pre-accident audio recordings because the Police Department's nternal report and plaintiff's notice of claim, which attached the public police accident report, put defendants on notice that they would likely assert an emergency operation defense. Therefore, pre-accident audio communication between the dispatcher and the police vehicle or officers involved in the accident should have been preserved in case it was needed for future litigation.

Sanchez v. City of New York, NY Slip Op 01970 (1st Dep't March 19, 2020)

Here is the decision.

Contracts and equity.

 A court of equity may rescind a contract for unilateral mistake if the failure to do so would enrich one party at the other's expense, and the parties can be returned to the status quo without prejudice.

Quattro Parent LLC v. Rakib, NY Slip Op 01966 (1st Dep't March 19, 2020)

Here is the decision.

CPLR 3116(a).

The trial court erred in permitting defendants to use the transcripts of plaintiff's and his nonparty wife's depositions at trial, since the transcripts had never been served upon plaintiff and his wife.

Greenman v. 2451 Broadway Mkt., Inc., NY Slip Op 01962 (1st Dep't March 19, 2020)

Here is the decision.

Design defect and failure to warn claims.

The denial of summary judgment on the design defect claim was affirmed, as plaintiff's expert's averments that the ladder at issue was defective and unreasonably dangerous because its design included feet that were prone to wear and tear and to slip out, raised issues of fact as to whether the ladder was defectively designed and the proximate cause of plaintiff's injuries.  The defendant's mere compliance with minimum industry standards is not a shield to liability, but, at most, is some evidence to be considered.

The denial of summary judgment on the failure to warn claim was affirmed, since plaintiff's expert raised issues of fact as to whether the ladder's warnings failed to identify the foot slip-out danger or instruct the user of proper methods to mitigate the danger.

Alicea v. Gorilla Ladder Co., NY Slip Op 01960 (1st Dep't March 19, 2020)

Here is the decision.

CPLR 3025[b].

The Supreme Court did not abuse its discretion in denying leave to amend the first amended complaint, particularly where plaintiff acknowledges that it could have sought leave sooner, but strategically chose not to. The plaintiff's additional allegations supplement claims already deemed sufficiently pleaded, and those further allegations would prejudice the defendant at this late stage, when discovery has closed, trial is scheduled to commence, and the defendant's summary judgment motion is pending.

Atlas MF Mezzanine Borrower, LLC v. Macquarie Tex. Loan Holder LLC, NY Slip Op 01709 (1st Dep't March 12, 2020)

Here is the decision.

Res judicata.

Res judicata does not bar plaintiffs' current action seeking compensation for injuries and damages resulting from a mold condition in their apartment in a building that is owned and managed by defendants. The record shows that a stipulation discontinuing a prior lawsuit against one of defendants' board members for his alleged tortious acts was not intended to encompass plaintiffs' current claims.

Gaudio v. Grabler Bldg. Condominium, NY Slip Op 01700 (1st Dep't March 12, 2020)

Here is the decision.

Appellate practice.

In reviewing a determination made after a nonjury trial, the Appellate Division has power as broad as the trial court's, and it may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial judge had the advantage of seeing the witnesses.

Bar v. Mandler, NY Slip Op 01592 (2d Dep't March 11, 2020)

Here is the decision.

CPLR 3101.

While 3101(a) provides for full disclosure of "all matter material and necessary in the prosecution or defense of an action," the principle is limited by 3101(b) and (c), which make privileged matter and attorney work product absolutely immune from discovery.  In addition, pursuant to 3101(d)(2), material that is prepared in anticipation of litigation is subject to a conditional privilege and is subject to disclosure only on a party's showing a substantial need of the material and the inability to get the substantial equivalent of the material by any other means without undue hardship.

1415, LLC v. New York Mar. & Gen. Ins. Co., NY Slip Op 01589 (2d Dep't March 11, 2020)

Here is the decision.

An action marked "Disposed."

The motion court properly ordered the action to be marked "Disposed" since all four of the plaintiff's causes of action had been resolved at the time defendant made its motion to dismiss.  The plaintiff's argument that the second cause of action had not been withdrawn at the time of the defendant's motion is unavailing, since, in an earlier order, the motion court explicitly dismissed without prejudice that claim. Although that order was decided by a different justice, CPLR 2221(a) permits the reassignment of such motions.

Fiondella v. 345 W. 70th Tenants Corp., NY Slip Op 01699 (1st Dep't March 12, 2020)

Here is the decision.

Conditional orders of preclusion.

Where the plaintiff failed to comply with a conditional order of preclusion requiring her to produce authorizations relating to treatment for her preexisting conditions, the order became absolute. As the order precluded her from offering evidence as to damages at trial, plaintiff would be unable to prove her prima facie case, and the action was dismissed. The defendants were not required to show prejudice as a result of the plaintiff's noncompliance.

Diaz v. Maygina Realty LLC, NY Slip Op 01697 (1st Dep't March 12, 2020)

Here is the decision.

CPLR 3215(c).

Pursuant to the statute, "if [a] plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned...upon its own initiative or on motion." The language of the statute is not discretionary, and a claim for which a default judgment is not sought within the requisite one-year period will be deemed abandoned. Notwithstanding that, a claim will not be deemed abandoned if the party seeking a default judgment provides sufficient cause as to why the complaint should not be dismissed. Here, the plaintiff waited almost three years to seek a default judgment, and it failed to provide sufficient cause as to why the complaint should not be dismissed. As such, plaintiff's complaint is dismissed as abandoned.

Wells Fargo Bank, N.A. v. Martinez, NY Slip Op 01593 (1st Dep't March 12, 2020)

Here is the decision.

The admissibility of business records.

An employee may lay a business record foundation for documents without having personal knowledge of their contents.

Deutsche Bank Natl. Trust Co. v. Kirschenbaum, NY Slip Op 01573 (1st Dep't March 10, 2020)

Here is the decision.

Opposition papers.

A plaintiff abandons his claims by failing to oppose that part of the defendant's motion seeking dismissal of those claims.

Leveron v. Prana Growth Fund I, L.P., NY Slip Op 01568 (1st Dep't March 10, 2020)

Here is the decision.

Appellate Practice.

In a nonjury case, where the record is complete, the Appellate Division's power of review extends to making any appropriate award of damages.

Xiaoen Xie v. Park Place Estate, LLC, NY Slip Op 01522 (2d Dep't March 4, 2020)

Here is the decision.

Slips and falls.

A stairway's worn marble tread, without more, is not an actionable defect.

DeCarbo v. Omonia Realty Corp., NY Slip Op 01555 (1st Dep't March 5, 2020)

Here is the decision.

A claim of ordinary negligence.

When the gravamen of the action is the alleged failure to exercise ordinary and reasonable care to ensure that no unnecessary harm befalls a patient, the claim sounds in ordinary negligence. Here, the plaintiff alleges that the defendant "failed to perform the services in a competent and professional manner," and "failed to properly test, perform services, and perform laser hair removal and treat plaintiff." While the defendant offered an expert affidavit in support of its motion to dismiss, the plaintiff raised an issue of fact by submitting photographs of her injuries and provided testimony as to the effects and injuries arising from the defendant's alleged negligence. The defendant's motion was properly denied since the laser treatment was not medical in nature and did not involve specialized knowledge of medical science or diagnosis.

Berkowitz v. Equinox One Park Ave., Inc., NY Slip Op 01553 (1st Dep't March 5, 2020)

Here is the decision.

Reply papers.

The defendant cannot remedy a fundamental deficiency in its moving papers for summary judgment with evidence submitted in its reply to the plaintiff's opposition, although the evidence may be considered in opposition to the plaintiff's cross motion.

Ruland v. 130 FG, LLC, NY Slip Op 01558 (1st Dep't March 5, 2010)

Here is the decision.

Appellate practice.

Plaintiffs abandoned their appeal from the dismissal of the breach of fiduciary duty claims by failing to make any arguments about it in their appellate briefs.

Binn v. Muchnick, Golieb & Golieb, P.C., NY Slip Op 01302 (1st Dep't February 25, 2020)

Here is the decision.

Replies and sur-replies.

The motion court providently exercised its discretion in considering the third-party defendant's arguments raised by for the first time in its reply papers, having given the defendant the opportunity to respond to those arguments by way of a sur-reply and a motion for summary judgment.

Pizarro v. Dennis James Boyle, Inc., NY Slip Op 01299 (1st Dep't February 25, 2020)

Here is the decision.

Appellate practice.

The Appellate Division dismissed the appeal from an interim order which, to the extent appealed from, held in abeyance defendant's motion seeking plaintiff's forfeiture of further distribution of artwork under the parties' settlement agreement, the appointment of a permanent receiver, and to enjoin plaintiff from litigation on the parties' settlement agreement without leave of court, as taken from a nonappealable order. The court's deferral of a decision on defendant's motion is not appealable as of right, pursuant to CPLR 5701[a][2][v], and the Appellate Division declined to grant leave to appeal.

Condo v. Condo, NY Slip Op 01294 (1st Dep't February 25, 2020)

Here is the decision.

Proper service.

An affidavit of service constitutes prima facie evidence of proper service, and the mere denial of receipt of service is insufficient to rebut the presumption of proper service created by a properly-executed affidavit of service. Here, the Appellate Division affirmed the Supreme Court's finding of  jurisdiction over the defendant by proper service of the summons and complaint. In the defendant's affidavit, she denied that she was personally served because she had temporarily moved to a family member's home.  However, there is no documentary evidence to support her claim that she was never in her "dwelling place or usual place of abode," pursuant to CPLR 308[2], at the time service allegedly was effected.

The defendant's argument that she is shorter than the person described in the affidavit of service is insufficient to rebut the presumption of proper service, and she does not dispute that the other descriptions set forth in the affidavit of service, such as her age, weight, hair color, and skin color, match her description. Further, the defendant concedes that both her husband and a female tenant resided at the address where service was effected, and she does not dispute that they were of suitable age and discretion to have accepted service, pursuant to CPLR 308[2].

Ocwen Loan Servicing, LLC v. Ali, NY Slip Op 01292 (1st Dep't February 25, 2020)

Here is the decision.

The prevention doctrine.

The doctrine is a variant of the implied covenant of good faith and fair dealing. It is applicable only where it is consistent with the intent of the contracting parties.

Tisoped Corp. v. Thor 138 N 6th St LLC, NY Slip Op 01287 (1st Dep't February 25, 2020)

Here is the decision.

CPLR 311[a][1]; CPLR 312-a[a]; Business Corporation Law § 306.

The court properly denied plaintiff's motion for a default judgment, and sua sponte dismissed the complaint for lack of personal jurisdiction, as plaintiff failed to demonstrate proper service of the summons and complaint. Service by certified mail to the corporate defendant's address, alone, is not a proper means of service.

Miller v. 21st Century Fox Am., Inc., NY Slip Op 01311 (1st Dep't February 25, 2020)

Here is the decision.

A motion for leave to amend the complaint.

The motion court did not abuse its discretion in denying leave. Defendant failed to explain why it waited until the brink of the discovery deadline to file its motion, and why it did not move by order to show cause or otherwise timely convey the "emergency" that arose when it realized that plaintiffs' belated document production contained previously unknown admissions that formed the basis for the counterclaims. While defendant claims that it acted as soon as possible after receiving the 100,000-plus documents, the motion court reasonably concluded that defendant could have avoided the last-minute nature of the document production, noting that defendant did not move to compel more prompt production of the documents, which it admits it had sought since February 2018. Moreover, defendant's June 2019 letter to the court primarily addresses plaintiff's failure to produce discovery substantiating its own damages claims, rather than the documents that it now claims support the proposed counterclaims.

Further, defendant's proposed new allegations - against plaintiff and two new defendants as well as other potentially relevant individuals implicated by the allegations - will inevitably entail substantial discovery and resulting delays. While CPLR 3025(b) motions may be granted at any time during the pendency of an action, defendant's explanation for the timing of its motion, combined with the scope of the proposed amendments, fails to show that the court, which anticipated not being able to try the case until 2021, was not reasonably concerned about the delay the new issues would generate.

Ness Tech. SARL v. Pactera Tech. Intl. Ltd., NY Slip Op 01310 (1st Dep't February 25, 2020)

Here is the decision.