A municipality's liability.

A municipality that has adopted a prior written notice law is not liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies. There are two exceptions to the prior written notice requirement: where an affirmative act of negligence by the municipality creates the defect, or where a special use of the property confers a special benefit upon the municipality.

D. D. v. Incorporated Vil. of Freeport, NY Slip Op 04727 (2d Dep't August 26, 2020)

Here is the decision.

The storm in progress rule.

Under the rule, a property owner is not responsible for accidents occurring as a result of the accumulation of snow and ice until an adequate period of time has passed following the storm's cessation to give the owner an opportunity to ameliorate the hazards caused by the storm. On a motion for summary judgment, the question of what is a reasonable period of time may be decided as a matter of law, based on the circumstances of the case.

Bryant v. Retail Prop. Trust, NY Slip Op 04725 (2d Dep't August 26, 2020)

Here is the decision.

Appellate practice.

Where the issues raised on the appeal from so much of an order as denied that branch of the motion for leave to renew could not have been raised on the prior appeal, the Appellate Division will not dismiss the appeal from that portion of the order.

2005-2011 Realty, LLC v. Brailovskiy, NY Slip Op -4722 (2d Dep't August 26, 2020)

Here is the decision.

Common law indemnification.

Common-law, or implied, indemnification allows one who has been compelled to pay for another's wrong  to recover from the wrongdoer the damages it paid to the injured party. Common-law indemnification is warranted where a defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is only vicarious. A party who has itself actually participated in the wrongdoing cannot receive the benefit of indemnification.

Hamed v. City of New York, NY Slip Op 04540 (2d Dep't August 19, 2020)

Here is the decision.

Moving for summary judgment in a negligence action.

The burden is on the defendant to establish that he was not at fault in the happening of the accident.

Flores v. Westchester County Bee Line, NY Slip Op 04538 (2d Dep't August 19, 2020)

Here is the decision.

CPLR 3101(d)(1).

A treating physician is permitted to testify at trial regarding causation notwithstanding the failure to provide notice, and even if the physician had expressed no opinion regarding causation in a previously exchanged medical report.

Duman v. Scharf, NY Slip Op 04537 (2d Dep't August 19, 2020)

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CPLR 4404(a).

A trial court has the discretion to order a new trial in the interest of justice. The motion encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise. In considering the motion, the trial judge must decide whether substantial justice has been done and whether it is likely that the verdict has been affected. In arriving at the decision, the judge must look to common sense, experience, and a sense of fairness, rather than to precedents.

Duman v. Scharf, NY Slip Op 04537 (2d Dep't August 19, 2020)

Here is the decision.

An action to foreclose on a mortgage.

Actions to foreclose on a mortgage are governed by a six-year statute of limitations, pursuant to CPLR 213[4]. When the mortgage is payable in installments, as is the typical practice, an acceleration of the entire amount due begins the running of the statute of limitations on the entire debt. However, a party purporting to accelerate the debt must establish standing by demonstrating that, at the time the action was commenced, it was either the holder or an assignee of the underlying note.

Deutsche Bank Trust Co. Ams. v. Marous,  NY Slip Op 04536 (2d Dep't August 19, 2020)

Here is the decision.

Appellate practice.

The appeal must be dismissed because the right of direct appeal terminated with the entry of the order and judgment of foreclosure and sale.

Deutsche Bank Trust Co. Ams. v. Marous, NY Slip Op -4535 (2d Dep't August 19, 2020)

Here is the decision.

Preliminary injunctions.

In order to obtain a preliminary injunction, the movant must demonstrate a likelihood of success on the merits, irreparable injury absent the injunction, and a balancing of the equities in the movant's favor, pursuant to CPLR 6301. In deciding the motion, the court must be mindful that the injunction's purpose is to maintain the status quo, and not to determine the parties' ultimate rights. The decision to grant or deny the injunction lies within the sound discretion of the Supreme Court, and, absent unusual or compelling circumstances, the Appellate Division is reluctant to disturb the decision.

538 Morgan Ave. Props., LLC v. 538 Morgan Realty, LLC, NY Slip Op 04530 (2d Dep't August 19, 2020)

Here is the decision.

Motions to dismiss.

On a motion to dismiss for failure to state a claim, pursuant to CPLR 3211(a)(7), the court must afford the pleadings a liberal construction, pursuant to CPLR 3026, take the allegations in the complaint as true, and afford the plaintiff the benefit of every possible favorable inference. A motion court must only determine whether the facts, as alleged, fit within any cognizable legal theory. Whether a plaintiff can ultimately establish its allegations should not be considered in determining a motion to dismiss. Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence conclusively establishes, as a matter of law, a defense to the asserted claims.

Charles Schwab Corp. v. Goldman Sachs Group, Inc., NY Slip Op 04520 (1st Dep't August 13,2020)

Here is the decision.

CPLR 3101(d)(1)(i).

The Supreme Court properly exercised its discretion in denying the plaintiffs' motion, made mid-trial, to preclude the defendants' expert from testifying about theories of causation not specifically referenced in the defendants' expert disclosure statement. The basis of the plaintiffs' objection to the expert disclosure was readily apparent from the face of the disclosure and could have been raised, and potentially cured, prior to trial.

Goldsmith v. Kipnis, NY Slip Op 04461 (2d Dep't August 12, 2020)

Here is the decision.

A claim of adverse possession.

To establish the claim, the occupation of the property must be hostile and under a claim of right, that is, a reasonable basis for believing that the property belongs to a particular party; actual; open and notorious; exclusive; and continuous for at least the statutory period of 10 years. The character of the possession must be such that it would give the owner a cause of action in ejectment against the occupier. In addition, where the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was usually cultivated or improved or protected by a substantial inclosure. Because the acquisition of title by adverse possession is not favored under the law, the elements must be proven by clear and convincing evidence.

Blake Rising, LLC v. Atlantic Collision, Inc., NY Slip Op 04450 (2d Dep't August 12, 2020)

Here is the decision.

Vacatur for lack of jurisdiction.

The Appellate Division affirmed the Supreme Court's determination to deny those branches of the defendants' motion which were pursuant to CPLR 5015(a)(1) and to vacate the order. A plaintiff's failure to serve a defendant with a motion for summary judgment on the complaint deprives the Supreme Court of jurisdiction to entertain the motion, and nullifies any resulting order granting it. Here, the plaintiff's submission of an affidavit of service, indicating that the papers in support of its motion for summary judgment were timely mailed to the defendants' counsel at the address provided by counsel in the answer to the complaint, demonstrated that the defendants were properly served with the motion, pursuant to CPLR 2103[b][2]. So, the order was not subject to vacatur for lack of jurisdiction pursuant to CPLR 5015(a)(4).

Deutsche Bank Natl. Trust Co. v. Quinn, NY Slip Op 04456 (2d Dep't August 12, 2020)

Here is the decision.

Court of Claims Act § 10(6).

In determining whether to exercise its discretion to allow the filing of a late claim, a court will consider factors such as whether the delay in filing is excusable; whether the State had notice of the essential facts constituting the claim; whether the State had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve a timely claim or a notice of intention resulted in substantial prejudice to the State; and whether the claimant has any other available remedy. No one factor is controlling, and neither is the presence or absence of any one factor determinative.

Cox v. New York State Thruway Auth., NY Slip Op 04455 (2d Dep't August 12, 2020)

Here is the decision.

A claim of prima facie tort.

The claim will be dismissed for failure to state a claim,  pursuant to CPLR 3211(a)(7),  where the plaintiff fails to allege special damages.

Benjamin v. Assad, NY Slip Op 04449 (2d Dep't August 12, 2020)

Here is the decision.

A motion for leave to renew.

Pursuant to CPLR 2221[e][2], the motion "shall be based upon new facts not offered on the prior motion that would change the prior determination." Pursuant to 2221[e][3], the motion "shall contain reasonable justification for the failure to present such facts on the prior motion." Renewal is not a second chance that is freely given to a party who have not exercised due diligence in making its first factual presentation.

Bellevue v. Gustav, NY Slip Op 04448 (2d Dep't August 12, 2020)

Here is the decision.

CPLR 3211(a)(5).

 On a motion to dismiss the complaint as time-barred, the moving defendant must establish, prima facie, that the time in which to commence the action has expired. Where the defendant makes the prima facie showing, the burden shifts to the plaintiff to establish that the statute of limitations has not expired, that it is tolled, or that an exception applies.

Arnell Constr. Corp. v. New York City Sch. Constr. Auth., NY Slip Op 04446 (2d Dep't August 12, 2020)

Here is the decision.

Recovery in quantum merit.

The complaint will be dismissed where there is a valid contract governing the subject matter of the claim. 

D. Gangi Contr. Corp. v. City of New York, NY Slip Op 04378 (2d Dep't August 5, 2020)

Here is the decision.

Appellate practice.

No appeal lies from an order or judgment granted upon the default of the appealing party, pursuant to CPLR 5511.

Bank of N.Y. Mellon v. Fontana, NY Slip Op 04375 (2d Dep't August 5, 2020)

Here is the decision.

A claim of unlawful retaliation.

Pursuant to Executive Law § 296(1)(e), it is unlawful to retaliate against an employee who opposes discriminatory practices. To set forth a claim of unlawful retaliation, the employee must show that he or she engaged in a protected activity; that the employer was aware that the employee participated in the activity; that the employee suffered an adverse employment action; and that there is a causal connection between the employee's activity and the adverse action. When this initial burden is met, the burden shifts to the employer to present legitimate, independent, and nondiscriminatory reasons for its actions.

Matter of Copiague Union Free Sch. Dist. v. Foster, NY Slip Op 04303 (2d Dep't July 29, 2020)

Here is the decision.

CPLR Article 78 proceedings.

In order to annul an administrative determination made after a hearing, directed by law, at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination. "Substantial evidence" is relevant proof that a reasonable mind may accept as adequate to support a conclusion or ultimate fact.

Matter of Batra v. Egan, NY Slip Op 04300 (2d Dep't July 29, 2020)

Here is the decision.

A negligence action.

A plaintiff moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff, and that the defendant's negligence was a proximate cause of the alleged injuries. While the plaintiff need not establish the absence of comparative fault, the issue of a plaintiff's comparative negligence may be decided on a summary judgment motion where, as here, the plaintiff moves for summary judgment dismissing the defendant's affirmative defense of comparative negligence.

Hai Ying Xiao v. Martinez, NY Slip Op 04295 (2d Dep't July 29, 2020

Here is the decision.

Notices of appearance.

Where the plaintiff's process was a summons with notice, as authorized by CPLR 305(b), the defendant may appear in the action, and avoid a default, by timely serving a notice of appearance.

Deutsche Bank Natl. Trust Co. v. Hall, NY Slip Op 04292 (2d Dep't July 29, 2020)

Here is the decision.

CPLR 3211(a)(7).

On a motion to dismiss, the court merely examines the adequacy of the pleading, unlike a summary judgment motion, where the court searches the record and assesses the sufficiency of the parties' evidence. In considering the motion to dismiss, the court must accept the complaint's factual allegations as true, give the plaintiff the benefit of every favorable inference, and determine only whether the facts, as alleged, fit within any cognizable legal theory. 

Darden v. OneUnited Bank, NY Slip Op 04291 (2d Dep't July 29, 2020)

Here is the decision.

Summary judgment in a slip-and-fall action.

The defendant has the burden of demonstrating, prima facie, that it did not create the alleged dangerous condition, or have actual or constructive notice of it for a sufficient length of time to discover and remedy it. A property owner who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition. A question of fact regarding a recurrent dangerous condition can be established by offering evidence that an ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed.

Darbinyan v. 1806 Ocean Realty, LLC, NY Slip Op 04290 (2d Dep't July 29, 2020)

Here is the decision.

CPLR 306-b.

After the plaintiff admitted that its original affidavit of service was erroneous and failed to produce its process server when the parties appeared for a hearing to determine the validity of service of process, the Supreme Court denied the plaintiff's motion and granted the defendant's motion to dismiss. The Appellate Division affirmed.

CPLR 306-b provides, in pertinent part, that "[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action." The statute further provides that, "[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."

An extension of time for service is a matter within the trial court's discretion. In applying the statutory interest of justice standard, which is distinct from the good cause standard, the court must consider the facts and balance the parties' competing interests. The court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including the Statute of Limitations, the potentially meritorious nature of the cause of action, the length of the delay in service, the promptness of the plaintiff's request to extend time, and prejudice to the defendant.

Here, the plaintiff's delay of nearly five years between obtaining a default judgment of foreclosure and sale against the defendant and its attempt to enforce that judgment, during which time the statute of limitations expired, weighed against extending the time to serve the defendant with the summons and complaint by approximately nine years. In addition, the court found that the plaintiff was seeking statutory relief in order to avoid the consequences of its inability to produce its process server on the scheduled date of the hearing. 

Chase Home Fin., LLC v. Berger, NY Slip Op 04289 (2d Dep't July 29, 2020)

Here is the decision.

Appellate practice.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment. The issues raised on appeal from the order are brought up for review, and are considered on the appeal from the judgment, pursuant to CPLR 5501[a][1].

Bowers v. Grier, NY Slip Op 04288 (2d Dep't July 29, 2020)

Here is the decision.

CPLR 3215(f).

A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant's default, and the facts constituting the claim. In a declaratory judgment action, the judgment will not be granted on the default and the pleadings alone, since the plaintiff must establish its right to the declaration.

Ameriprise Ins. Co. v. Kim, NY Slip Op 04286 (2d Dep't July 29, 2020)

Here is the decision.

CPLR 3211(a)(1).

A claim will be dismissed if the submission of documentary evidence conclusively establishes,  as a matter of law, a defense to the asserted claims. If the motion is not made before an answer is interposed, or preserved in a responsive pleading, it is waived.

M&E 73-75, LLC v. 57 Fusion LLC, NY Slip Op 04372 (1st Dep't July 30, 2020)

Here is the decision.

CPLR 3215(c).

The statute provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." It is not necessary that the plaintiff actually obtain a default judgment within one year of the default in order to avoid dismissal.

Bank of Am., N.A. v. Wessen, NY Slip Op 04141 (2d Dep't July 22, 2020)

Here is the decision.