Reasonable damages.

The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and the jury's determination will not be disturbed unless the award deviates materially from what is reasonable compensation. In determining whether a verdict constitutes reasonable compensation, courts will look to prior awards in cases involving similar injuries, as well as the nature and extent of the plaintiff's injuries.

Arcos v. Bar-Zvi, NY Slip Op 04139 (2d Dept July 22, 2020)

Here is the decision.

An employer's liability for an independent contractor.

The general rule is that the employer is not liable for an independent contractor's negligent acts. Determining whether there is an employer-employee relationship depends on whether the purported employer exercises control over the results produced, or the means used to achieve the results, and control over the means is the more important consideration. Factors relevant in assessing control include whether the worker worked at his or her own convenience; was free to engage in other employment; received fringe benefits;  was on the employer's payroll; and was on a fixed schedule. Minimal or incidental control over the work product, absent the employer's direct supervision or input over the means used to complete the work, is insufficient to establish an employer-employee relationship.

Athenas v. Simon Prop. Group, L.P., NY Slip Op 04140 (2d Dep't July 22, 2020)

Here is the decision.

Tortious interference with business relations.

In order to prevail on the cause of action, a plaintiff must prove that it had a business relationship with a third party; that the defendant knew of that relationship, and intentionally interfered with it; that the defendant's actions were motivated solely by malice, or otherwise constituted illegal means; and that the defendant's interference caused injury to the plaintiff's relationship with the third party.

684 E. 22nd Realty Co., LLC v. Sheehan, NY Slip Op 04136 (2d Dep't July 22, 2020)

Here is the decision.

SCPA 2205(2)(g).

A plaintiff does not have standing to compel an accounting in the absence of any evidence that, at any point, the defendant was a fiduciary.

8-48 Catalpa Realty Corp. v S & S Med. Assoc., P.C.. NY Slip Op 04135 (2d Dep't July 22, 2020)

Here is the decision.

The doctrine of res judicata.

The doctrine encompasses both claim preclusion and issue preclusion. Claim preclusion bars claims that were, or should have been, advanced in a previous suit involving the same parties. Issue preclusion, or collateral estoppel, bars the relitigation of issues that were argued and decided in the first suit, but it does not bar entire causes of action. Unlike claim preclusion, issue preclusion can be raised by someone who was not a party or in privity in the first suit. Issue preclusion applies after the final adjudication of an identical issue that was actually litigated, and necessarily decided, in the first suit, and the issue was necessary to support a valid and final judgment on the merits.

Rojas v. Romanoff, NY Slip Op 04237 (1st Dep't July 23, 2020)

Here is the decision.

The client's right to arbitrate.

The failure to provide timely notice of the right to arbitrate is a bar to a subsequent plenary action for legal fees.

Filemyr v. Hall, NY Slip Op 04238 (1st Dep't July 23, 2020)

Here is the decision.

Appellate practice.

Where the order was not predicated on a motion made on notice, it is not appealable as of right, pursuant to CPLR 5701[a][2]. However, in the interest of justice, the Court may deem the notice of appeal as a request for leave to appeal, and grant leave for a determination on the merits, pursuant to CPLR 5701[c].

Matter of Gliklad v. Deripaska, NY Slip Op 04233 (1st Dep't July 23, 2020)

Here is the decision.

Appellate practice.

While, generally, an argument may not be raised for the first time on appeal, the Court may review a question of law presented for the first time on appeal if it appears on the face of the record and could not have been avoided if it had been raised at the proper juncture. Here, there is case law supporting the proposition that a plaintiff moving for summary judgment on the issue of liability on a cause of action alleging a violation of section BC 3309.4 must show, prima facie, that the plaintiff granted the requisite license for the defendant to access, inspect, and protect its property. As the defendants, in effect, are challenging the plaintiffs' legal showing on their summary judgment motion, as opposed to challenging the sufficiency of the plaintiffs' evidence in support of their motion, the defendants' argument is reviewable, even though it is raised for the first time on appeal.

211-12 N. Blvd. Corp. v. LIC Contr., Inc., NY Slip Op 04134

Here is the decision.

Orders of preclusion.

Where plaintiff violated the court's conditional order of preclusion by failing to produce a witness for a scheduled deposition, and failed to demonstrate either a reasonable excuse for the failure to comply or a meritorious claim, the court may deny plaintiff's motion to allow the deposition to proceed. The court is not required to find that the failure to comply was willful.

Center Sheet Metal v. Cannon Design, Inc., NY Slip Op 04010 (1st Dep't July 15, 2020)

Here is the decision.

22 NYCRR 202.27.

In order to vacate a dismissal based on being unprepared to proceed with trial at a calendar call, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action. The determination of whether an excuse is reasonable lies within the sound discretion of the court.

Bank of Am., N.A. v. Wood, NY Slip Op 03885 (2d Dep't July 16, 2020)

Here is the decision.

Easements.

Where a written instrument granting the easement is unambiguous, the parties' intent must be found within the four corners of the document, and the question is one of law, which may be decided on a motion for summary judgment.  Once an easement for ingress and egress is definitively located by grant, its location cannot be changed unilaterally by either party, and the servient landowner is not free to unilaterally designate the particular path that may be used for ingress and egress.  Where an easement is granted in general terms, without limitation, and the right-of-way is described by its metes and bounds, the dominant estate is entitled to a right-of-way over the entirety of the described area.

Acosta v. Vincenti, NY Slip Op 03882 (2d Dep't July 16, 2020)

Here is the decision.

CPLR 5015(a)(1).

A defendant's unspecified problems with mail and its bare denial of receipt of the complaint do not constitute a reasonable excuse for a default.

Jansons Associated Inc. v. 112 E. 72nd LLC, NY Slip Op 04003 (1st Dep't July 16, 2020)

Here is the decision.

Appellate practice.

Plaintiffs' motion, denominated as one for leave to renew and reargue, is not based on new facts unavailable at the time of defendants' motion, and, therefore, is a motion to reargue, the denial of which is not appealable.

Alfani v. Rivercross Tenants Corp., NY Slip Op 03994 (1st Dep't July 16, 2020)

Here is the decision.

A disqualification motion.

The basis for the motion is the alleged breach of the fiduciary duty owed by an attorney to a current or former client. When the law firm targeted by the motion has never represented the moving party, the firm owes no duty to that party. So, in the absence of an attorney-client relationship with the firm, a plaintiff has no standing to bring a motion to disqualify.

HSBC Bank USA, N.A. v. Santos, NY, Slip Op 03976 (1st Dep't July 16, 2020)

Here is the decision.

A property owner's liability.

 The owner is not iable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub a toe, or trip.  In determining whether the defect is trivial, the court must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect, as well as the time, place, and circumstances of the incident.. In moving to dismiss the complaint, the defendant may submit photographs which fairly and accurately represent the accident site.

Acevedo v. City of Yonkers, NY Slip Op 03881 (2d Dep't July 15, 2020)

Here is the decision.

CPLR 3404.

A case marked off or struck from the trial calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, is deemed abandoned and will be dismissed for neglect to prosecute. A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked off must demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant. All four components of the test must be satisfied before the dismissal can be vacated and the action restored.

Patriarca v. Oreckinto, NY Slip Op 03795 (2d Dep't July 8, 2020)

Here is the decision.

Agency.

An agent acting on behalf of a disclosed principal is not liable for breach of contract in the absence of clear and explicit evidence of the agent's intention to be bound.

Overbay, LLC v. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., NY Slip Op 03794 (2d Dep't July 8, 2020)

Here is the decision.

Vacatur of a default.

The court providently exercised its discretion in denying defendant's motion to vacate. After failing to oppose plaintiff's motion for summary judgment on its mortgage foreclosure complaint and its subsequent motion for the entry of a judgment of foreclosure and sale, defendant moved to vacate the judgment and the underlying order. However, she failed to appear for oral argument, and the motion was denied. Defendant then appealed from the denial of the motion to vacate the order that denied her first motion to vacate. The Appellate Division noted that, in support of the motion, defendant failed to demonstrate any excuse, much less a reasonable excuse, for her failure to contest the dispositive motions. In the absence of a reasonable excuse, the Appellate Division did not consider whether defendant demonstrated a meritorious defense.

U.S. Bank N.A. v. Hattim, NY Slip Op 03856 (1st Dep't July 9, 2020)

Here is the decision.

Contracts.

A material breach is a failure to do something that is so fundamental that the failure to perform the obligation defeats the essential purpose of the contract. Here, defendants breached the agreement's explicit terms by missing the installment payments. The court rejected the argument that the provision of an interest penalty if a payment is not timely made precludes a finding of breach, and that defendants were entitled to pay at an undisclosed later date, is unavailing, as it would allow defendants never to pay.

Feldmann v. Scepter Group, Pte. Ltd., NY Slip Op 03855 (1st Dep't July 9, 2020)

Here is the decision.

Appellate practice.

The arguments concerning so much of the order as granted defendant's motion for summary judgment dismissing the complaint insofar as predicated on its violation of a common-law duty are not properly before the court. Despite being aggrieved thereby, the plaintiff did not appeal from that part of the order.

E.B.-W v. New York City Hous. Auth., NY Slip Op 03865 (1st Dep't July 9, 2020)

Here is the decision.

CPLR 5015 .

Since the order granting summary judgment dismissing the complaint was granted on default, the court properly denied plaintiff's motion to renew and reargue. The proper remedy for plaintiff was to move to vacate the default.

Luciano v. Felix, NY Slip Op 03878 (1st Dep't July 9, 2020)

Here is the decision.

Dismissal for failure to comply with court orders.

The Appellate Division determined that the IAS court did not improvidently exercise  its discretion by dismissing this action after the plaintiff failed to comply with two so-ordered stipulations and a conditional order that gave him a final chance to comply. Plaintiff was warned that, if he did not comply strictly and completely, defendant could move to dismiss. A pro se plaintiff cannot ignore court orders.

Wyatt v. Sutton, NY Slip Op 03734 (1st Dep't July 2, 2020)

Here is the decision.

Negligent hiring and negligent entrustment.

The plaintiff wa injured when the driver-defendant struck her with his livery cab. The corporate defendant's motion to dismiss the negligentl entrustment and negligent hiring claims was denied. The Appellate Division reversed.

A motor vehicle's owner may be liable for negligent entrustment if it was negligent in entrusting it to a person it knew, or in the exercise of ordinary care should have known, was not competent to operate it. Here, the plaintiff alleged that the driver-defendant owned the car, and she did not allege, even in a conclusory fashion, that he was not competent to drive, or that the corporate defendant knew or should have known of any incompetence. The plaintiff's bare pleading of the corporate defendant's control  and the failure to allege its knowledge of any incompetence require dismissal.

The claim alleging negligent hiring, training, and retention must be dismissed because the complaint fails to allege that the driver-defendant had a propensity to drive negligently, and that the corporate defendant, when it retained him as a driver, knew, or should have known, of any such propensity.

While the plaintiff argues that dismissal is premature, in her opposition to the motion to dismiss she did not make any additional submissions to cure the pleading deficiencies or to establish that additional discovery is necessary. The corporate defendant responded to her outstanding discovery demands concerning the factual bases for her negligence claims while the motion was pending, and the plaintiff did not object to the adequacy of those responses.

Kornfeld v. Zheng, NY Slip Op 03732 (1st Dep't July 2, 2020)

Here is the decision.

A forum selection clause.

As a matter of law, the forum selection clause of the parties' Repurchase Agreement does not apply to their Separation Agreement. The agreements do not constitute a single, integrated agreement, since the two agreements were not executed for the same purpose and do not concern the same subject matter or arise from the same transaction. While the parties executed both agreements, and the agreements refer to each other, they are not interdependent. The Repurchase Agreement memorializes a one-time repurchase transaction, while the Separation Agreement memorializes a discrete, ongoing, and conditional transaction with a different purpose. Specifically, in the Separation Agreement plaintiff acknowledges his obligation to comply with certain specified protective covenants, and defendant agreed to pay him a bonus if he did so.

Cernich v. Athene Holding Ltd., NY Slip Op 03724 (1st Dep't July 2, 2020)

Here is the decision.

A motion for a judgment of foreclosure and sale.

The attachment of the note to the verified complaint is sufficient to establish that the lender had physical possession of the note prior to commencement of the action.

Ocwen Loan Servicing LLC v. Siame, NY Slip Op 03719 (1st Dep't July 2, 2020)

Here is the decision.

CPLR 4518.

Dental records created in the regular course of business are admissible as business records to the extent they are germane to the diagnosis and treatment of the patient.

Viera v. Khasden, NY Slip Op 03717 (1st Dep't July 2, 2020)

Here is the decision.

Appellate practice.

The Appellate Division declines to consider arguments concerning the Labor Law 240(1)  claim, as the plaintiff abandoned it by failing to oppose that aspect of the defendants' motion for summary judgment.

Sancino v. Metropolitan Transp. Auth., NY Slip Op 03615 (1st Dep't June 25, 2020)

Here is the decision.

An insufficient petition for leave to file a late notice of claim.

The petitioner failed to show that HHC had actual notice of the claim within 90 days of its accrual, or within a reasonable time thereafter.  HHC's records of the petitioner's treatment, on their face, do not show any negligence, malpractice or injury to the petitioner, and the petitioner does not submit a physician's affirmation to make such a showing. HHC's mere possession of medical records, in and of itself, does not establish a lack of prejudice if the petition were granted. Because the petitioner offered no other basis for the lack of prejudice to HHC, the burden never shifted to HHC to show prejudice from the delay. Neither does the petitioner provide any specific information or medical evidence to support a claim that the delay was reasonable.

Matter of Atkinson v. New York City Health & Hosps. Corp., NY Slip Op 03609 (1st Dep't June 25, 2020)

Here is the decision.