Extinguished agreements.

Where the parties clearly express their intention that a subsequent agreement supersedes a prior agreement, the remedy for breach is to sue on the subsequent agreement.

Kefalas v. Valiotis, NY Slip Op 04750 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: The enforcement of settlements.

Appellate practice.

The plaintiff moved, pursuant to CPLR 3126, to strike the defendant's answer and for leave to enter a default judgment based on willful noncompliance with court-ordered discovery. The defendant opposed the motion. In an order dated February 22, 2016, the Supreme Court granted the plaintiff's motion. In March 2018, the defendant moved for leave to reargue its opposition to the plaintiff's motion and, alternatively, pursuant to CPLR 5015(a)(1), to vacate the February 22, 2016 order. In the order appealed from, the court denied the defendant's motion. The Appellate Division affirmed that the Supreme Court properly denied the motion to vacate the February 22, 2016 order. Since the plaintiff's motion to strike the answer and for leave to enter a default judgment was opposed on the merits, the order granting that motion was appealable, and the defendant's motion to vacate it was procedurally improper.

Hinds v. 33rd St. Astoria, LLC, NY Slip Op 04749 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Extinguished agreements.

Defective sidewalks.

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifts tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner. Section 7-210[a] directs landowners to maintain their abutting sidewalks in a "reasonably safe condition." However, this provision does not apply to one-, two- or three-family residential property that is  owner-occupied, and used exclusively as a residence.

Blaise v. Guleria, NY Slip Op 04745 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

Vacating a default in answering.

A motion to vacate on the basis of excusable default, pursuant to CPLR 5015[a][1], and to compel the plaintiff to accept an untimely answer, pursuant to CPLR 3012[d], requires a reasonable excuse for the default and a potentially meritorious defense. Law office failure may be a reasonable excuse, but mere neglect is not. Here, it is not reasonable that defendant did not appoint an attorney until several months after the default.

Biskra, Inc. v. U.S. Bank N.A., NY Slip Op 04744 (2d Dep't August 25, 2021)

Here is the decision.

Tomorrow's issue: Defective sidewalks.

Summary judgment in a slip-and-fall case.

The plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Hughes v. Tower Crestwood 2015, LLC, NY Slip Op 04705 (2d Dep't August 19, 2021)

Here is the decision.

Tomorrow's issue: Vacating a default in answering.

Notices of claim.

A timely and sufficient notice of claim is a condition precedent to asserting a tort claim against a municipality or public benefit corporation. Pursuant to General Municipal Law § 50-e, the claimant must state the nature of the claim and the time when, the place where, and the manner in which it arose. The purpose of the statutory requirement is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the claim and to explore its merits while information is still readily available.

Harrison v. City of New York, NY Slip Op 04703 (2d Dep't August 18, 2021)

Here is the decision.

Tomorrow's issue: Summary judgment in a slip-and-fall case.

CPLR 3211(a).

A defendant can only move to dismiss a cause of action where that cause of action is actually asserted against the moving defendant.

Grocery Leasing Corp v. P&C Merrick Realty Co., LLC, NY Slip Op 04702 (2d Dep't August 18, 2021)

Here is the decision.

Tomorrow's issue: Notices of claim.

Appellate practice.

The Appellate Division will not consider plaintiff's arguments that are outside the scope of the notice of appeal and amended notice of appeal, pursuant to CPLR 5515[1].

Grocery Leasing Corp. v. P & C Merrick Realty Co, LLC, NY Slip Op 04701 (2d Dep't August 18, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3211(a).

CPLR 3215(c).

"]f the 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 . . . unless sufficient cause is shown why the complaint should not be dismissed." In order to avoid dismissal, it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default, or to specifically seek the entry of a judgment within one year. As long as'proceedings are undertaken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal. Furthermore, where an action is subject to a mandatory settlement conference, pursuant to CPLR 3408, the one-year deadline is tolled while settlement conferences are pending.

Deutsche Natl. Bank Trust Co. v. Attard, NY Slip Op 04698 (2d Dep't August 18, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

Failure to appear at a scheduled conference.

Pursuant to 22 NYCRR 202.27, upon a party's failure to appear at a scheduled conference, the court may note the default on the record, and, where the plaintiff appears but the defendant does not, enter an order granting judgment by default or order an inquest, or, where the defendant appears but the plaintiff does not, dismiss the action. In order to vacate a default in appearing at a conference, the defaulting party must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense to the action. The determination of whether an excuse is reasonable lies within the sound discretion of the trial court.

126 Henry St., Inc. v. Cater, NY Slip Op 04629 (2d Dep't August 18 2021)

Here is the decision.

Tomorrow's issue: CPLR 3215(c).

CPLR 3211(a)(7).

On a motion to dismiss the complaint for failure to state a claim, the standard is whether the pleading states a cause of action. When the movant offers evidence, the motion must be denied unless the evidence establishes conclusively that the plaintiff has no cause of action.

Francisco v. Kiara Foods, Inc., NY Slip Op 04662 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: Failure to appear at a scheduled conference.

CPLR 3215(c).

Pursuant to the statute, where a plaintiff fails to take proceedings for the entry of judgment within one year after a default, the court will dismiss the complaint as abandoned.  The one exception to the otherwise mandatory statutory language is that the failure to timely seek a default on an unanswered complaint or counterclaim may be excused if 'sufficient cause is shown why the complaint should not be dismissed. The Second Department interprets this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious. The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court.

Deutsche Bank Nat'l Trust Co. v. Brathwaite, NY Slip Op 04659 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3211(a)(7).

CPLR 213(2).

The statute of limitations for an action to recover on a promissory note is six years.

Carpenito v. Linksman, NY Slip Op 04657 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3215(c).

A motion for summary judgment in an action to foreclose a mortgage.

The plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law. The plaintiff meets its burden by producing the mortgage, the unpaid note, and evidence of default. An affidavit based on personal knowledge may establish the default.

Bank of N.Y Mellon v. DeLoney, NY Slip Op 04655 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: CPLR 213(2).

CPLR 3218(a)(2).

The statutory requirement that an affidavit of confession of judgment must state concisely the facts out of which the debt arose and show that the sum confessed is justly due is meant to protect innocent third parties who might be prejudiced in the event that a collusively confessed judgment is entered, not the party who signed the confession of judgment. Therefore, the defendant was foreclosed from challenging the confession of judgment on this ground.

Balahtsis v. Shakola, NY Slip Op 04653 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: A motion for summary judgment in an action to foreclose a mortgage.

Appellate practice.

An order that is not made upon notice is not appealable as of right, pursuant to CPLR 5701(a). However, the Appellate Division may deem a notice of appeal a request for leave to appeal and grant leave, in the interest of justice, for a determination on the merits, pursuant to CPLR 5701(c).

Zubillaga v. Findlay Teller Hous. Dev. Fund Corp., NY Slip Op 04687 (1st Dep't August 12, 2021)

Here is the decision.

Tomorrow's issue: CPLR 3218(a)(2).

Summary judgment on a legal malpractice claim.

In order to succeed on the motion, the defendant must present, in admissible form, evidence that at least one of the claims essential elements cannot be satisfied: (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. The causation element requires a showing that, but for the lawyer's negligence, the injured party would have prevailed in the underlying action or would not have incurred any damages. The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice, rather than merely pointing out gaps in the plaintiff's proof.

Aqua-Trol Corp. v. Wilentz, Goldman & Spitzer, P.A.NY Slip Op 04652 (2d Dep't August 11, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

Labor Law.

Labor Law § 200 codifies the common-law duty imposed on an owner or a general contractor to provide construction site workers with a safe place to work. Where a plaintiff's claims implicate the means and methods of the work, an owner or a contractor will not be held liable under the statute unless it had the authority to supervise or control the performance of the work. General supervisory authority to oversee the progress of the work is insufficient to impose liability.

Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide construction workers with reasonable and adequate protection. In order to establish statutory liability, a plaintiff must demonstrate that his injuries were proximately caused by a violation of an applicable Industrial Code provision.

Kefaloukis v. Mayer, NY Slip Op 04601 (2d Dep't August 4, 2021)

Tomorrow's issue: Summary judgment on a legal malpractice claim.

CPLR 308(5).

A court may permit service by publication, upon motion without notice, if traditional service is "impracticable." The impracticability standard does not require the applicant to satisfy the more stringent standard of due diligence under CPLR 308(4). Neither does it require the applicant to make an actual showing that service has been attempted pursuant to CPLR 308(1), (2), and (4).

JP Morgan Chase Bank, N.A. v. Perkin, NY Slip Op 04600 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue:  Labor Law.

CPLR 3211(a)(1).

A motion to dismiss the complaint on the ground of documentary evidence may only be granted where the  evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law, The defendant bears the burden of demonstrating that the proffered evidence conclusively refutes the plaintiff's factual allegations. In order to be considered "documentary," the evidence must be unambiguous and of undisputed authenticity. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, may qualify as documentary evidence.

Giambrone v. Arnone, Lowth, Wilson, Leibowitz, Adriano & Greco, NY Slip Op 04597 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 308(5).

CPLR 3018[b].

The Statute of Limitations is a personal defense which is waived if it is not affirmatively pled.

Emigrant Bank v. McDonald, NY Slip Op 04594 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3211(a)(1).

CPLR 5015[a][1].

A party seeking to vacate a default in appearing on the return date of a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense. A court may accept law office failure as a reasonable excuse, pursuant to CPLR 2005, but the claim must be specific, detailed, and corroborated.

Bank of Am., N.A. v. Russell, NY Slip Op 04592 (2d Dep't July 29, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3018(b).

CPLR 1012(a)(3).

The statute provides that, on a timely motion, any person may intervene, as of right, "when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person  may be affected adversely by the judgment." In considering whether the motion to intervene is timely, courts do not merely measure time, but, instead, consider whether the delay in seeking intervention delay in resolution of the action, or otherwise prejudice a party.

1077 Madison St., LLC v. Dickerson, NY Slip Op 04591 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 5015[a][1].

Appellate practice.

An argument that does not constitute a purely legal issue that is apparent on the face of the record may not be raised for the first time on appeal.

Residential Bd. of Millennium Point v. Condominium Bd. of Millennium Point, NY Slip Op 04649 (1st Dep't August 5, 2021)

Here is the decision.

Tomorrow's issue: CPLR 1012(a)(3).

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 for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant. As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint.

1077 Madison St., LLC v. Dickerson, NY Slip Op 04590 (2d Dep't August 4, 2021)

Here is the decision.

Tomorrow's issue: Appellate practice.

An action to foreclose a mortgage.

The action is properlyaddressed to a court of equity, which will determine the parties' rights according to equity and good conscience. Here, the Appellate Division affirmed the Supreme Court's determination that a "fifty-percent shareholder causing the entity to forego recovery on its only remaining asset goes against every principle of equity."

True Gate Holding, Ltd. v. Baroukhian, NY Slip Op 04588 (1st Dep't July 29, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3215(c).

Premises liability.

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

Baran v. Port Auth. of N.Y. & N.J., NY Slip Op 04589 (2d Dep't July 28, 2021)

Here is the decision.

Tomorrow's issue:  An action to foreclose a mortgage.

Collateral estoppel.

The Appellate Division affirmed, with costs, the Order which granted plaintiff's motion for summary judgment and an order of reference, and denied defendants' cross motion to dismiss the complaint. Defendants are collaterally estopped from relitigating the timeliness of the foreclosure action, which was decided in the court's prior order and affirmed on appeal.

True Gate Holding, Ltd. v. Baroukhian, NY Slip Op 04588 (1st Dep't July 29, 2021)

Here is the decision.

Tomorrow's issue:  Premises liability.

Appellate practice.

An appeal from a final judgment brings up for review any non-final judgment or order which necessarily affects the final judgment, provided that such non-final judgment or order has not previously been reviewed by the court to which the appeal is taken, pursuant to CPLR 5501[a][1]. Thus, only an appeal from a final judgment will bring up for review prior nonfinal orders.

Shah v. 20 E. 64th St., LLC, NY Slip Op 04587 (1st Dep't July 29, 2021)

Here is the decision.

Tomorrow's issue:  Collateral estoppel.

A claim for medical malpractice.

In order to establish a physician's liability, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that the alleged departure was a proximate cause of the plaintiff's injuries. Generally, expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause. The expert witness's opinions must be based on facts in the record or personally known to the witness.

Bacchus-Sirju v. Hollis Women's Ctr., NY Slip Op 04538 (2d Dep't July 28, 2021)

Here is the decision.

Tomorrow's issue:  Appellate practice.

A prior property owner's liability.

As a general rule, liability for a dangerous condition does not extend to a prior owner of the premises. There is a narrow exception to the general rule, and there may be liability where a dangerous condition existed at the time of the conveyance, and the new owner has not had a reasonable time to discover the condition if it was unknown, or to remedy the condition once it became known.

Hayden v. 334 Dune Rd., LLC, NY Slip Op 04481 (2d Dep't July 21, 2021)

Here is the decision.

Tomorrow's issue:  A claim for medical malpractice.