A claim for unpaid fees.

The Appellate Division unanimously affirmed dismissal of defendants' counterclaims for unpaid fees for services rendered before they failed to comply with a deadline set in an action in federal court. Where the attorney is discharged without cause, the recovery, in quantum merit, is limited to the reasonable value of the services rendered. However, where the discharge is for cause, the attorney has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement. Here, as defendants do not challenge Supreme Court's finding, after a hearing, that plaintiff terminated them for cause in the prior action, recovery of unpaid fees is barred.

Vioni v. Carey & Assoc., LLC, NY Slip Op 01880 (1st Dep't March 25, 2021)

Here is the decision.

Limitations period for fraud.

The Appellate Division rejected the argument that the limitations period on the claim for aiding and abetting breach of fiduciary duty is three years because plaintiff seeks damages, not equitable relief, noting that where, as here, the claim is based on allegations of actual fraud, it is subject to a six-year limitations period.

Wimbledon Fin. Master Fund, Ltd. v. Hallac, NY Slip Op 01881 (1st Dep't March 26, 2021)

Here is the decision.

Limitations period for breach of fiduciary duty.

The breach of fiduciary duty claim was dismissed as barred by the three-year statute of limitations, pursuant to CPLR 214[4]. In seeking recovery of compensation that plaintiff paid its decedent-employee during the time he allegedly engaged in an insider trading scheme, plaintiff seeks purely monetary relief, not equitable relief for which an award of monetary damages would be inadequate. Plaintiff's characterization of that relief as "disgorgement" of compensation does not convert it into a claim for equitable relief to which the six-year statute of limitations would apply, pursuant to CPLR 213[1].

VA Mgt. LP. v. Estate of Valvani, NY Slip Op 01878 (1st Dep't March 25, 2021)

Here is the decision.

Dismissal based on documentary evidence.

The Appellate Division unanimously affirmed, with costs,  the Order which granted defendants' motion to dismiss the complaint. Plaintiff's allegations are conclusively refuted by documentary evidence, namely, plaintiff's assignment of its interest in the condominium's sponsor entity and the subsequent deeds in which title to the unit appurtenant to the parking ramp at the center of the dispute was transferred to another entity, showing that plaintiff did not own the ramp. Plaintiff's bad faith in filing an unauthorized amendment to the condominium declaration, after assigning away its interest, to purport to obtain title to the ramp, without any colorable basis for doing so, renders its urging for equity unavailing.

Sackman Enters. Inc. v. Board of Mgrs. of the Chesterfield Condominium, NY Slip Op 01732 (1st Dep't March 23, 2021)

Here is the decision.

The single motion rule.

CPLR 3211(e) states that, "At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted." A second motion to dismiss is permitted where the movant takes its cue from the court's earlier decision to supply evidence that was found lacking on the first motion. Here, the Appellate Division held that the arguments relating to the application of the statute of limitations are barred by the single motion rule. Defendants-appellants previously moved to dismiss the fourth and fifth causes of action in the Second Amended Complaint, which are the exact same fourth and fifth causes of action asserted in the Third Amended Complaint. 

Simon v. FrancInvest, S.A., NY Slip Op 01733 (1st Dep't March 23, 2021)

Here is the decision.

A guarantor's liability.

Plaintiff, a minority member of defendant-LLC, seeks to enforce a buyout right provided in the LLC's operating agreement and personally guaranteed by the individual defendants, the majority members of the LLC. The terms of the put option in the agreement are clear and unambiguous, including a trigger date and a means of calculating the buyout price. Plaintiff demonstrated prima facie that it gave proper notice of its intent to invoke the buyout option and that defendant LLC did not make payment, and defendants raised no issue of fact precluding summary judgment. As for the individual defendants' liability, the operating agreement provides that they each, jointly and severally, personally guaranteed the LLC's obligation under the buyout option. Defendants' reliance on cases involving the personal liability of corporate officers for the contractual obligations of the corporation is misplaced because defendants did not sign the agreement on behalf of any principal, disclosed or otherwise. Instead, the operating agreement was entered into by and among the individual members to form the LLC and set forth the terms governing the relationships among them. In any event, they each signed the agreement individually, without any limitation on their signatures, and the individual defendants' obligation to personally guaranty the buyout option is set forth in clear and explicit language, making their intent unmistakable. Defendants' further argument that there was no consideration for their guaranty is unavailing. The minority members' investment provided consideration for their undertaking and, because the guaranty was entered into concurrently with the principal obligation, no separate consideration was required.

TKS Realty, LLC v. 391 Broadway LLC, NY Slip Op 01735 (1st Dep't March 23, 2021)

Here is the decision.

An inconsistency between the decision and the judgment.

A written judgment must conform strictly to the court's decision, and in the event of an inconsistency between the two, the decision controls. Any such inconsistency may be corrected either by way of a motion for resettlement, pursuant to CPLR 2221, or on appeal, pursuant to CPLR 5019[a]. Here, the motion court's decision, amended to grant plaintiff's motion for summary judgment on his cause of action for breach of contract, also found that plaintiff was entitled to a money judgment for past due amounts owed. Because there is a conflict between the relief the motion court found plaintiff was entitled to in its decision, and the relief granted to plaintiff in the judgment, which made no provision for a money judgment as to plaintiff, the court's decision controls.

Schwartzbard v. Cogan, NY Slip Op 01523 (1st Dep't March 16, 2021)

Here is the decision.

The "danger invites rescue" doctrine.

Under the doctrine, there is a duty of care toward a potential rescuer where a culpable party has put another person in a position of imminent peril which invites the rescuing plaintiff to come to the aid of the person in peril. The doctrine applies where a potential rescuer reasonably believes that another is in peril, and the court will decide the applicability of the doctrine on the facts and circumstances of each case. Here, the plaintiff was an emergency medical technician who slipped on ice while transporting a patient from the sidewalk to the ambulance.  The doctrine is inapplicable, as there is no evidence that plaintiff was unable to see and avoid the slippery condition on the basis that the patient was endangered if she was not transported immediately to the hospital.

Benny v. Concord Partners 46th St. LLC, NY Slip Op 01550 (1st Dep't March 18, 2021)

Here is the decision.

A claim of trade libel.

Plaintiffs allegations that, upon information belief, they "lost multiple clients based on the series of websites published by the Pacellis and John Does" and that they "have had to pay expenses to protect their reputation, including an online reputation management and monitoring company and attorneys" are insufficient to plead the special damages element of the cause of action. 

Cedeno v. Pacelli, NY Slip Op 01552 (1st Dep't March 18, 2021)

Here is the decision.

Arbitrability of discrimination claims.

The Appellate Division unanimously reversed the Order which denied defendant's motion to compel arbitration of plaintiff's claims of sexual harassment in the workplace and retaliation, and granted the motion. Generally, when a contract delegates the arbitrability question to an arbitrator, a court may not override the contract and has no power to decide the arbitrability issue. Here, though, the motion court properly undertook an analysis of the threshold question of the arbitration agreement's enforceability because plaintiff's sexual harassment claims involve strong public policy considerations and the application of CPLR 7515, which prohibits agreements that compel arbitration of discrimination claims. Plaintiff's reliance on CPLR 7515 is unavailing, as it is not applicable to arbitration agreements, like the one at issue, that were entered into before the statute was enacted in 2018. Accordingly, the Appellate Division did not have to resolve defendant's further contention that the Federal Arbitration Act, which is expresly applicable to the employment agreement at issue here, is inconsistent with, and therefore displaces, CPLR 7515 to the extent that it prohibits outright a specific type of claim. Plaintiff's contention that revisions to defendant's employee handbook, rendered in 2018, superseded the arbitration agreement is also unavailing. The issue of whether the policy revisions supersede the arbitration agreement is one for the arbitrator to decide, as the arbitration agreement contains a delegation clause and this issue does not involve strong public policy considerations.

Newton v. LVMH Moet Hennessy Louis Vuitton Inc., NY Slip Op 01558 (1st Dep't March 18, 2021)

Here is the decision.

An untimely notice of claim.

The Appellate Division unanimously affirmed the Order which granted defendants' motion to dismiss the complaint for failure to file a timely notice. Plaintiff failed to establish that defendants should be equitably estopped from asserting the defense that she has not complied with the statutory requirements, because she made no showing that the City engaged in conduct that misled or discouraged her from serving a timely notice or making an application for leave to file a late notice before the limitations period expired. Defendants' answer, which was served when plaintiff still had time to seek leave to file a late notice, notified her that there had been a problem with service of the notice because defendants' answer denied that the notice had been properly served. The fact that defendants litigated the matter and did not move for dismissal until after the limitations period had expired does not establish that defendants should be estopped from asserting a statute of limitations defense.

Tirado v. City of New York, NY Slip Op 01564 (1st Dep't March 18, 2021)

Here is the decision.

CPLR 3212(f).

In this personal injury action, defendant's summary judgment motion was denied as premature, as depositions had not yet been held and the facts essential to oppose the motion are within defendant's exclusive knowledge and control.

Thomas v. Triboro Maintenance Corp., NY Slip Op 01526 (1st Dep't March 16, 2021)

Here is the decision.

The faithless servant doctrine.

Pursuant to the doctrine, an employee or agent who is faithless in the performance of his duties is not entitled to recover either salary or commission. Here, defendant, a nonmanaging member of plaintiff, was not an employee and is not alleged to have acted on plaintiff's behalf as its agent, and there are no allegations that he funneled business away to a competitor or engaged in theft. Accordingly, the Appellate Division determined that plaintiff's faithless servant claim was correctly dismissed.

Two Rivs. Entities, LLC v. Sandoval, NY Slip Op 01527 (1st Dep't March 16, 2021)

Here is the decision.

Collateral estoppel.

Defendant's contention that there is an issue of fact as to whether she was terminated from her position as a physician with plaintiff without giving the 90 days' notice required by her employment contract, or was verbally terminated by plaintiff's administrator is barred by the doctrine of collateral estoppel. In a separate action brought by defendant against the administrator, the court granted the administrator's motion to dismiss the action based on documentary evidence refuting defendants allegation that the administrator verbally terminated her before she resigned. Since the prior order addressed the same factual issue and found against defendant on the merits, she is precluded from relitigating that issue in this action.

14th Street Med., P.C. v. Epstein, NY Slip Op 01496 (1st Dep't March 16, 2021)

Here is the decision.

Appellate practice.

The Appellate Division unanimously dismissed as moot the appeal from the Order which granted defendant-restaurant's motion to compel plaintiff to appear for a further deposition to answer questions relating to brain imaging and a motor vehicle accident that post-dated her fall, and to provide authorizations for medical records related to the imaging and the accident. Plaintiff's appeal is moot since the deposition to which she objects has already been held, she has provided authorizations for the medical records at issue, and she made no attempt to maintain the status quo prior to this appeal.

Salomon v. United States Tennis Assn., NY Slip Op 01492 (1st Dep't March 8, 2021)

Here is the decision.

CPLR 510(3).

Where venue has properly been designated by the plaintiff based on the residence of either party, a defendant seeking a change of venue under CPLR 510(3) must make a detailed evidentiary showing that the nonparty witnesses will, in fact, be inconvenienced absent such relief. The movant's affidavit must (1) contain the names, addresses, and occupations of witnesses expected to be called; (2) disclose the facts upon which the witnesses are expected to testify, in order that the court may determine whether the witnesses are material and necessary; (3) demonstrate that the witnesses are willing to testify; and (4) show that the witnesses would be inconvenienced absent the change in venue.

10 Two Trees Lane LLC v. Mahoney, NY Slip Op 01371 (1st Dep't March 9, 2021)

Here is the decision.

Arbitrable and non-arbitrable claims.

Where arbitrable and non-arbitrable claims are inextricably interwoven, the court will stay the judicial proceedings pending completion of the arbitration, particularly where, as here, the determination of issues in arbitration may dispose of nonarbitrable matters. The litigation was correctly stayed as to the individual defendants, who, although nonsignatories to the arbitration agreements, were employees, partners, and agents of defendant during the relevant time period and, acting for defendant, performed services for plaintiffs.

T & M Trusteeship & Mgt. Servs. SA v. BDO USA, LLP, NY Slip Op 01494 (1st Dep't March 11, 2021)

Here is the decision.

Collateral estoppel, affidavits, and notices to admit.

The Appellate Division unanimously affirmed, with costs, the Order denying the parties' motions for summary judgment. The doctrine of collateral estoppel does not bar litigation of the issues decided in a Civil Court order and judgment entered in an earlier action between the parties since it was later vacated by the Appellate Term for lack of subject matter jurisdiction. Plaintiff failed to show prejudice arising from the motion court's acceptance of defendant's principal's corrected affidavit, originally submitted as an affirmation, pursuant to CPLR 2106. Nor can plaintiff rely on defendant's failure to respond to its notice to admit in support of its summary judgment motion because a notice to admit may not be used to request admission of material issues or ultimate or conclusory facts, or facts within the unique knowledge of other parties. Rather, a notice to admit is only properly used to eliminate from trial matters which are easily provable and about which there can be no controversy. Based on these principles, plaintiff's motion was properly denied. 

Utopia Heart Care, P.L.L.C. v. Gramercy Cardiac Diagnostic Servs., P.C., NY Slip Op 01373 (1st Dep't March 9, 2021)

Here is the decision.

Post-judgment subpoenas.

The Appellate Division unanimously reversed, with costs, the Order which denied petitioner's motion to impose contempt sanctions personally on defendant's principal for failing to respond to post-judgment subpoenas, granted the motion, and remanded for the imposition of sanctions. This special proceeding was commenced to compel defendant to respond to an information subpoena and subpoena duces tecum. The Supreme Court found defendant in contempt due to its failure to respond, and gave defendant an opportunity to purge that contempt. On this motion, petitioner seeks an order holding both defendant and its principal in contempt for the continued failure and refusal to respond to the subpoenas. The motion court erred in failing to find the principal in contempt since he was served with the subpoenas and made assurances that defendant would comply, but has refused and failed to do so.

Matter of Goetz Fitzpatrick LLP v. OTR Media Group, Inc., NY Slip Op 01374 (1st Dep't March 9, 2021)

Here is the decision.

Motions to reargue.

The movant may not advance a new argument in its motion for reargument. Nor is CPLR 5019(a) a proper vehicle for seeking changes to a prior order that would affect a substantial right of a party.

388 Realty Owner LLC v. Amtrust Intl. Underwriters Ltd., NY Slip Op 01350 (1st Dep't March 9, 2021)

Here is the decision.

CPLR 2221[e].

The Appellate Division unanimously reversed, with costs, the Order which denied plaintiffs' motion for leave to renew defendant's motion for summary judgment, granted the motion, and upon renewal, denied defendant's motion for summary judgment. Decedent had applied for a term life insurance policy, stating that his "Earned Annual Income" was $50,000. Decedent left his employment during the probationary period, and died while the policy was contestable, The insurance company rescinded the policy on the ground that decedent, on his application, had made a material misrepresentation as to his income. Plaintiffs brought this breach of contract action, and defendant moved for summary judgment before the close of discovery. While defendant's fully submitted motion was pending, there were three depositions, of an underwriting controls representative, a senior technical advisor, and the agent who sold the policy to decedent. The motion court granted defendant's motion for summary judgment, and then denied plaintiffs' motion for leave to renew defendant's motion based on these subsequently held depositions. The motion court should have granted plaintiffs motion for leave to renew in order to submit these deposition transcripts. Although the term "Earned Annual Income" was unambiguous and meant actual earned income, including salary, wages, and tips, and not potential income, the new evidence by way of the deposition transcripts raises a factual issue as to whether decedent's response amounted to a material misrepresentation sufficient to void the policy.

Han v. Brighthouse Life Ins. Co. of NY, NY Slip Op 01325 (1st Dep't March 4 2021)

Here is the decision.

Appellate practice.

This appeal from an order appointing a temporary independent Guardian for the Alleged Incapacitated Person (AIP) and vacating her power of attorney and health care proxy in favor of appellant was unanimously dismissed as moot, as the AIP died during the pendency of the appeal. Appellant argues that the adverse finding concerning his handling of the AIP's affairs will affect him in the future, but he fails to indicate how he will be adversely affected. Any issues concerning the future award of fees to the temporary guardian may be raised in the event of an appeal of that award.

Matter of Muser v. Muser, NY Slip Op 01332 (1st Dep't March 4, 2021)

Here is the decision.

A conditional order of preclusion.

Where defendants ignored a so-ordered stipulation which was a conditional order of preclusion, they are precluded from adducing evidence at trial. The order became self-executing when defendants took no action within the 30-day time limit in which they were to provide the requested discovery or "request [an] immediate conference" to explain why they could not do so. Defendants did neither.

Papadopoulos v. Metropolitan Transp. Auth., NY Slip Op 01434 (1st Dep't March 4, 2021)

Here is the decision.

An invalid joint tenancy.

Plaintiff is a publicly traded closed-end investment company, and the individual defendant is the founder and controlling person of defendant management companies. Plaintiff moved for partial summary judgment declaring that certain brokerage accounts were not valid joint tenancies under New York law. The Appellate Division noted that there are two key features in every joint tenancy. First, during the life of the tenancy, each tenant is entitled to one-half of the assets, even if only one tenant may have established and contributed to the asset. Second, upon the death of one of the tenants, the whole fund will vest in the surviving joint tenant. Accordingly, the Appellate Division affirmed the motion court's conclusion that a valid joint tenancy was never created, regardless of the individual defendant's professed intent, because the Participant Agreement makes it clear that the participants were not entitled to one-half the funds in the accounts. Moreover, at least one version of the Participant Agreement limited the participants' entitlement to only 5%, as opposed to 100%, of the funds in the account in the event he or she outlived the individual defendant.

Prospect Capital Corp. v. Lathen, NY Slip Op 01431 (1st De['t March 4, 2021)

Here is the decision.

CPLR 203(d).

The parties agreed in a written stipulation that plaintiffs could discontinue their prior action without prejudice and commence a new action on the same claims, provided it was timely done within 30-days of the discontinuance. Plaintiffs satisfied the stipulation's conditions when commencing this new action, and a stipulation between parties to discontinue a prior action should be given its intended effect. Defendants are not precluded from asserting a counterclaim in this new action despite not having asserted one in the prior action, even though the statute of limitations has run. The CPLR authorizes a defendant to assert any counterclaims or defenses that may arise out of the same transactions or occurrences upon which a claim in the complaint depends, provided such counterclaim or defense serves as only a shield to the extent of the demand in the complaint, and even though the counterclaim may be time-barred. Here, plaintiffs, in their complaint, allege that defendants breached the parties' agreements for providing elevator services and equipment. "Count 1" of defendants' counterclaim sufficiently pleads a counterclaim for quasi contract based on allegations that defendants provided elevator services and materials to plaintiffs and invoiced plaintiffs for such work, but plaintiffs never made payment on such invoices. "Count 2" of the counterclaim, which alleges detrimental reliance and promissory estoppel in connection with plaintiffs' alleged promises to pay defendants for their services and materials, lacks factual allegations of a sufficiently clear and unambiguous promise, reasonable reliance by defendants on the purported promises, and injury caused by the reliance. This claim is dismissed for failure to state a claim.

Rusi Holding Corp. v. Inner City EL, NY Slip Op 01344 (1st Dep't March 4, 2021)

Here is the decision.

The City's liability for emergency calls.

The Appellate Division unanimously affirmed the Order which granted defendant City of New York's motion to dismiss the complaint pursuant to CPLR 3211(a)(7) and 3212(a). Plaintiffs claim that the City's agent negligently chose a lower priority radio dispatch code in response to the decedent off-duty police officer's 911 call regarding a possible burglary in the house next door, and that the use of a lower priority code resulted in police arriving later than they might have if a higher priority code had been used. The City established that the defense of governmental function immunity applies in this case, as its agent's duties inherently entailed the exercise of discretion and judgment, and that the assignment of an applicable dispatch code based on the limited information provided by the decedent resulted from discretionary decision-making. The court correctly dismissed plaintiffs' General Municipal Law § 205-e claim for failure to identify noncompliance with a requirement found in a well developed body of law or regulation that imposes clear duties.

Estate of Enchautegui v. City of New York, NY Slip Op 01231 (1st Dep't March 2, 2021)

Here is the decision.

Vacatur of a default.

The Appellate Division unanimously reversed, on the law, the Order which granted defendant's motion to vacate the judgment, as defendant failed to demonstrate a reasonable excuse for its default or a meritorious defense to the action to justify vacatur. Plaintiff's service of process was deemed complete when defendant's registered agent in Delaware was served, regardless of whether it ultimately reached defendant. Moreover, the affidavit from defendant's CEO, stating that the email from the registered agent regarding service of process was sent to his "promotions" inbox, is simply insufficient to rebut the presumption of proper service. Defendant does not dispute that it breached its obligation to update its address with its registered agent, which led to its failure to receive service of process. Even if defendant's excuse were deemed reasonable, it failed to demonstrate a meritorious defense to the action. There is no evidence that defendant maintained the payments owed to plaintiff in a purported "reserve fund," or that plaintiff had knowledge of or ever agreed to the creation of such a fund. Indeed, emails from defendant's CEO to plaintiff's representatives suggest that defendant knew that it owed plaintiff the amounts sought.

Practice point: Defendant is also not entitled to relief under CPLR 317. Regardless of whether plaintiff served defendant's agent for service designated under CPLR 318, a meritorious defense is required under CPLR 317.

Salish Lodge LLC v. Gift Mgt. Inc., NY Slip Op 01239 (1st Dep't March 2, 2021)

Here is the decision.

Amending an expert's affirmation.

The Appellate Division determined that, on a motion for summary judgment in this medical malpractice action, it was within the motion court's discretion to permit defendants, in their reply, to cure the technical defects in their expert's affirmation with an amended affirmation that included the term "under penalty of perjury."

Bamberg-Taylor v. Strauch, NY Slip Op 01227 (1st Dep't March 2, 2021)

Here is the decision.

A storm-in-progress defense.

The Appellate Division unanimously affirmed the Order which granted defendants' motions for summary judgment dismissing the complaint. Their expert meteorologist opined that the icy condition on the staircase where plaintiff fell was the result of snowfall that day, which stopped approximately 35 to 40 minutes prior to the accident. A reasonable amount of time had not elapsed between the end of the snowfall and the accident to charge defendants with notice of the icy condition and a duty to remedy the condition. Further, plaintiff testified that she had not seen ice on the steps at any time before her accident. In opposition, plaintiff failed to raise an issue of fact. Her expert's conclusion that the melting and refreezing of accumulated snow from prior to the snowfall caused plaintiff's fall was speculative.

Ponce v. BLDG Orchard, LLC, NY Slip Op 01215 (1st Dep't February 25, 2021)

Here is the decision.

The common interest privilege.

The privilege applies where the communications at issue are otherwise protected under the attorney-client privilege and are made in furtherance of a legal interest or strategy common to the parties invoking the privilege. The proponent of the privilege has the burden of establishing that the information sought is immune from disclosure.

Stafford v. A&E Real Estate Holdings, LLC, NY Slip Op 01956 (1st Dep't March 30, 2021)

Here is the decision.

A claim for indemnification.

The Appellate Division unanimously reversed, on the law and the facts, with costs, the Order which denied third-party defendant's motion to dismiss the third-party complaint as against it. This is a putative class action in which plaintiff seeks to recover charges purported to be gratuities allegedly withheld from him and other catering service workers. The complaint alleges that defendant assessed mandatory charges to its customers, allowing them to believe that the charges were gratuities that would be distributed to waitstaff, and, instead, kept the charges for itself. Defendant commenced a third-party action against the company that supplied the waitstaff, seeking indemnification for damages that may be recovered from defendant in the first-party action. However, the third-party complaint alleges that defendant's mandatory charges to its customers were used to cover its own discretionary costs and does not allege that these charges were ever paid to or shared with third-party defendant. Moreover, there is no allegation either in the complaint or third-party complaint that third-party defendant wrongfully withheld any mandatory charges from the waitstaff. Further, defendant does not dispute third-party defendant's contention that it had nothing to do with defendant's decision to impose the mandatory charges or to retain them. Accordingly, defendant has not stated a cause of action for implied indemnification against third-party defendant.

Robinson v. Foremost Glatt Kosher Caterers, Inc., NY Slip Op 01219 (1st Dep't February 25, 2021)

Here is the decision.

The emergency doctrine.

Plaintiff was loading garbage into the rear of a garbage truck stopped on the side of the road when the front corner of defendant driver's vehicle struck the rear corner of the truck and plaintiff. A rear-end collision with a stopped vehicle creates a presumption that the moving vehicle's operator was negligent, so that an injured plaintiff is entitled to summary judgment on liability unless the driver of the second vehicle provides a non-negligent explanation for the collision. Defendant's explanation that he was suddenly blinded by the glare of the sun rising in the east as he was driving in that direction is insufficient to raise a non-negligent explanation for the collision. Although sun glare may contribute to an emergency situation, the ordinary circumstance of the sun's rising while a driver is heading east is not an emergency within the meaning of the doctrine. The fact that the truck was partly protruding into the driving lane was merely the occasion for the accident when defendant driver was temporarily blinded by the sun's glare. 

Practice point:  The grant of summary judgment was not premature since defendant did not demonstrate the need for any discovery concerning how the accident occurred.

Rodriguez v. Beal, NY Slip Op 01220 (1st Dep't February 25, 2021)

Here is the decision.