Jury verdicts.

A verdict for the defendant may not be set aside as contrary to the weight of the evidence unless the evidence preponderates so heavily in the plaintiff's favor that it could not have been reached on any fair interpretation of the evidence. Issues of credibility are for the jury, and the jury's resolution of those issues is given deference. Where there is conflicting expert testimony, the jury is entitled to accept one expert's opinion and reject that of another expert.

Abbene v. Conetta, NY Slip Op 05682 (2d Dep't October 20, 2021)

Here is the decision.

CPLR 3012(d).

The statute authorizes an extension of time to appear and plead upon such terms as may be just, and upon a showing of reasonable excuse for the delay or default. Here, the delay in filing an answer was occasioned by law office failure, which constitutes good cause. Defendant showed an intent to defend when it sought to extend its time to answer by stipulation. Plaintiff has not shown that he would be prejudiced, and New York has a strong policy in favor of litigating matters on the merits. 

Velasquez v. New York City Tr. Auth./MTA, NY Slip Op 05803 (1st Dep't October 21, 2021)

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CPLR 2001.

At any stage in an action, the court may permit a mistake, omission, defect, or irregularity to be corrected upon such terms as may be just, or, if a party's substantial right is not prejudiced, the mistake, omission, defect, or irregularity shall be disregarded. 

Wilmington Sav. Fund Socy., FSB v. Matamoro, NY Slip Op 05741 (2d Dep't October 20, 2021)

Here is the decision.

Contract interpretation.

Plaintiff's motion to dismiss so much of the counterclaim as sought damages in excess of $2 million and third-party defendants' motion to dismiss the third-party complaint were granted. The contractual provision that, in the event of plaintiff's default, defendants are entitled to retain the deposit as liquidated damages unambiguously refers to the deposit already made and held in escrow, as a party cannot retain something that it has not already acquired. As to the third-party complaint against plaintiff's members in their individual capacities, the pleadings fail to allege facts sufficient to demonstrate the inequity, fraud, or malfeasance necessary to sustain a claim to pierce the corporate veil.  The third-party complaint also fails to plead any facts to substantiate the conclusory allegations of a scheme to undercapitalize plaintiff. To the extent that the third-party complaint alleges that plaintiff is undercapitalized and might not be able to pay a judgment, third-party plaintiffs could not be damaged by such a scheme, as the contractual remedy is to retain the deposit already held in escrow. 

138 Bruckner Owner LLC v. Anjost Corp., NY Slip Op 05768 (1st Dep't October 21, 2021)

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CPLR 3102(c).

The petition is denied to the extent that it seeks a pre-action order to preserve and disclose video camera recordings taken on the bus involved in petitioner's trip-and-fall. The petition demonstrates that petitioner knows the date of the accident, the place of the accident, the individuals or entities involved in the accident, and the alleged cause of the accident. Therefore, she is in possession of facts sufficient to frame her complaint, and the only purpose of reviewing the video camera recordings would be to explore whether there are additional causes of action or alternative theories of liability. This is not a proper purpose for invoking the statute.

Matter of White v. New York City Tr. Auth., NY Slip Op 05805 (1st Dep't October 21, 2021)

Here is the decision.

CPLR 3211[a][3] and 3018[b].

Standing is in the nature of an affirmative defense to be pleaded and proved. There is no requirement that a plaintiff allege standing in the complaint.

Wilmington Sav. Fund Socy., FSB v. Matamoro, NY Slip Op 05741 (2d Dep't October 20, 2021)

Here is the decision.

CPLR 603.

The order which granted plaintiffs' motion to sever their declaratory judgment claim from defendant's counterclaims was affirmed.  Most of the plaintiffs in this action are not counterclaim defendants, and they would be prejudiced if severance were denied.

Spicer v. Garda World Consulting (UK) Ltd., NY Slip Op 05681 (1st Dep't October 19, 2021)

Here is the decision.

Establishing standing in a foreclosure action.

The plaintiff establishes standing by showing that it had either a written assignment or physical possession of the underlying note and mortgage prior to commencement. A conclusory statement in an affidavit will not suffice when standing is raised as a defense. Here, the affiant's bare claim that plaintiff "has been in continuous possession of the Note and Mortgage prior to referring the Loan to be foreclosed" is not sufficient to establish standing.

U.S. Bank Trust, N.A. v. Francis, NY Slip Op 05655 (1st Dep't October 14, 2021)

Here is the decision.

Res ipsa loquitur in a defective sidewalk action.

The Appellate Division affirmed the order which denied defendant's motion for summary judgment dismissing the complaint. Plaintiff's failure to specifically plead res ipsa loquitur does not bar her from invoking the doctrine where, as here, the facts warrant its application. A sidewalk collapse is not the type of incident which ordinarily occurs in the absence of negligence, and defendant failed to show that it did not have exclusive control over the maintenance and repair of the sidewalk slab which collapsed.  In addition, defendant did not demonstrate that plaintiff's own negligence caused the collapse. 

Williams v. Forward Realty Corp., NY Slip Op 05658 (1st Dep't October 14, 2021)

Here is the decision.

CPLR 3215(c).

Pursuant to the statute, "If 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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."  In order to establish sufficient cause, the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action. The determination of whether an excuse is reasonable is committed to the sound discretion of the motion court, and reversal is warranted if that discretion is improvidently exercised.

Deutsch Bank Nattl. Trust Co. v. Bakarey, NY Slip Op 05543 (2d Dep't October 13, 2021)

Here is the decision.

Appellate practice.

In an action to foreclose a mortgage, the plaintiff appeals from the order which granted the defendant's motion, pursuant to CPLR 3211(a)(5), to dismiss the complaint as time-barred. The Supreme Court determined that the action was untimely, as the entire mortgage debt had been accelerated more than six years before the action was commenced. The court rejected the plaintiff's contention that certain monthly invoices sent to the defendant's lawyer had been effective to de-accelerate the outstanding mortgage debt. The court set forth two alternative grounds for its determination: (1) the invoices were not sent to the proper address as specified in the mortgage, and (2) the invoices failed to constitute clear and unequivocal notice of the plaintiff's election to de-accelerate the outstanding mortgage debt.

On appeal, the plaintiff does not contend that the invoices were sent to the proper address in accordance with the terms of the mortgage. The only argument made by the plaintiff that relates to the first alternative ground set forth in the order appealed from is raised for the first time on appeal and is not properly before the Appellate Division. The Appellate Division need not address the plaintiff's remaining contentions, as they all relate to the second alternative ground set forth in the order appealed from.

Deutsche Bank Natl. Trust Co. v. 9th St, LLC, NY Slip Op 05542 (2d Dep't October 13, 2021)

Here is the decision.

CPLR 5015(a)(3).

The court may relieve a party from a judgment or order upon the ground of fraud, misrepresentation, or other misconduct of an adverse party. 

Citimortgage, Inc. v. Zagoory, NY Slip Op 05541(2d Dep't October 13, 2021)

Here is the decision.

The Pothole Law.

Pursuant to Administrative Code of the City of New York § 7-201(c)(2), commonly known as the Pothole Law, no civil action may be maintained against the City for personal injuries resulting from an alleged dangerous condition in the roadway unless written notice of the defective condition was actually given to the appropriate person authorized to receive such notice, or there is a written acknowledgment from the City of the defective condition, and the City failed to repair it within 15 days of the notice. The prior written notice is a condition precedent which a plaintiff must plead and prove. The only recognized exceptions to the statutory notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality. The affirmative act of negligence exception is limited to work that immediately results in a dangerous condition.

Caballero v. City of New York, NY Slip Op 05540 (2d Dep't October 13, 2021)

Here is the decision.

Expert opinion in a defective design action.

The Appellate Division dismissed the claim because plaintiff failed to rebut defendant's prima facie showing that the van was not negligently designed. Where a qualified expert opines that a particular product is defective or dangerous, describes why it is dangerous, explains how it can be made safer, and concludes that it is feasible to do so, it is for the jury to make the required risk-utility analysis and decide whether the product was reasonably safe. However, an expert cannot raise an issue of fact to avoid summary judgment when the opinion consists of bare conclusory allegations of alleged defects or industry-wide knowledge. Here, plaintiffs' expert's assertions were unsupported by any data concerning the testing he purportedly performed, and which he described in conclusory terms and general statements. Plaintiffs pointed to reports concerning the alleged propensity of 15-passenger vans to roll over, but such reports are hearsay In addition, the tests performed in connection with those reports were computerized models of a generic passenger van, results rebutted by defendant in an on-track study showing that its van did not behave as the generic computerized model did. 

Richards v. Ford Motor Co., NY Slip Op 05469 (1st Dep't October 12, 2021)

Here is the decision.

Contract law and cure provisions.

A party's termination is ineffective where the contract provides for a notice-to-cure and notice is not given. There are limited circumstances where, despite being contractually required, notice is not necessary, such as where the other party expressly repudiates the contract or abandons performance. Notice is not required where the breach is impossible to cure, or so substantial that it undermines the entire contractual relationship such that it cannot be cured. This is based on the common law contract principle that a material breach that goes to the root of the matter or the essence of the contract constitutes grounds for rescission without opportunity to cure.

East Empire Constr. Inc. v. Borough Constr. Group LLC, NY Slip Op 05455 (1st Dep't October 12, 2021)

Here is the decision.

Sanctions for frivolous conduct.

Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the party's attorney for frivolous conduct. Conduct is frivolous if (1) it is completely without merit in law, and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.  A party seeking the imposition of sanctions or an award of attorney's fees has the burden of proof.

Glaubach v. Slifkin, NY Slip Op 05323 (2d Dep't October 6, 2021)

Here is the decision.

CPLR 3215(g)(3)(i).

The Appellate Division reversed the order which denied the individual defendant's motion to vacate a default judgment as against him, and granted the motion. The plaintiff mailed the summons to the defendant's places of business, not his place of residence, and failed to state that the place of residence was unknown. The burden is on the plaintiff to show that he did not know the defendant's place of residence, not on the defendant to prove that the plaintiff knew the place of residence.

Thomas v. Karen's Body Beautiful, LLC, NY Slip Op 05408 (1st Dep't October 7, 2021)

Here is the decision.

The implied covenant of good faith and fair dealing.

Where the express terms of a contract allow one party to terminate it in "its sole discretion" or "for any reason whatsoever," the covenant cannot serve to negate that provision.

Vendome v. Oldenburg, NY Slip Op 05409 (1st Dep't October 7, 2021)

Here is the decision.

A cause of action for breach of fiduciary duty.

The plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant's misconduct.

Glaubach v. Slifkin, NY Slip Op 05322 (2d Dep't October 6, 2021)

Here is the decision.

CPLR 5015(a)(3).

In order to prevail on a motion to vacate an order awarding summary judgment in a foreclosure action, the proponent must establish that the opponent procured the order by fraud, misrepresentation, or other misconduct. Broad, conclusory, and unsubstantiated allegations of fraud are insufficient. 

Deutsche Bank Natl. Trust Co. v. Le-Mond, NY Slip Op 05319 (2d Dep't October 6, 2021)

Here is the decision.

Admissibility of medical records in a personal injury action.

The defendant waived his right to object to the admission of the records as business records, as he failed to timely object after having been served with the plaintiff's notice of her intention to enter the documents into evidence, pursuant to CPLR 3122-a. The testimony of the office manager laid a proper foundation for the admission of the records, pursuant to CPLR 4518[a].

Benguigui v. Racer, NY Slip Op 05318 (2d Dep't October 6, 2021)

Here is the decision.

Termination of an at-will employee.

The Appellate Division affirmed, with costs, the order that granted the defendants' motion for summary judgment, dismissing the complaint. The plaintiff applied for a job at the defendants' restaurant, and was offered paid training sessions in contemplation of potential employment. The plaintiff alleges that she was wrongfully discharged when the defendants cancelled the training sessions. It is well-settled in New York that there is no cause of action for an at-will employee's wrongful discharge unless the termination of employment is constitutionally impermissible or statutorily proscribed, or unless there is an express limitation in an employment contract. Here, the defendants established  their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was, at best, an at-will employee and that her employment was not impermissibly terminated. In opposition, the plaintiff failed to raise a triable issue of fact.

Babalola v. Terry Vegetarian, LLC, NY Slip Op 05317 (2d Dep't October 6, 2021)

Here is the decision.

CPLR 3101(c).

Records which are attorney work product are specifically protected from disclosure. The records cannot be redacted under the Freedom of Information Law (FOIL), which permits redactions of records only under the personal privacy exemption.

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A nonjusticiable controversy under the First Amendment.

The Appellate Division affirmed dismissal of this action.  Although the plaintiff contends that the $230,000 payment she made to defendants five years before the action was commenced should not be considered a tithe, the record shows that the payment was, in fact, a tithe, and that plaintiff made it voluntarily. The $230,000 check made out to the defendant stated "tithe" in the memo section. The issues of the plaintiff's motivation for tithing and the proper amount of the tithe necessarily implicate the interpretation of religious doctrine ,and cannot be resolved through the application of neutral principles of law.

Wilson v. Christ Alive Christian Ctr., NY Slip Op 05315 (1st Dep't October 5, 2021)

Here is the decision.

A cause of action for conversion.

The plaintiff must show (1) legal ownership or an immediate right of possession to tangible personal property or specific money, and (2) that the defendant exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff's right. There is conversion when funds designated for a particular purpose are used for an unauthorized purpose.

Alpha/Omega Concrete Corp. v. Ovation Risk Planners, Inc., NY Slip Op 05113 (2d Dep't September 29, 2021)

Here is the decision.

Appellate practice.

The appeal from the order which granted plaintiff's motion to proceed pseudonymously was dismissed.  The death of a party divests a court of jurisdiction to conduct proceedings in an action until a proper substitution has been made pursuant to CPLR 1015(a). While the parties need not renew their motions, proper substitution of a defendant must be made before the motion is decided. Since the order was issued after a defendant's death and without proper substitution, the Appellate Division does not have jurisdiction to hear and determine the appeal.

Thomas v. Rubin, NY Slip Op 05112 (1st Dep't September 28, 2021) 

Here is the decision.

CPLR 3215(c).

As set forth in the statute, "[i]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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action." The purpose of CPLR 3215(c) is to prevent parties who have asserted claims from unreasonably delaying the termination of actions, and to avoid inquests on stale claims.

Federal Natl. Mtge.Assn. v. Kahana, NY Slip Op 05024 (2d Dep't September 22, 2021)

Here is the decision.

CPLR 2214(b).

The defendant's opposition to the plaintiffs summary judgment motion was due to be served no later than seven days prior to the return date, but the defendant served his opposition six days after the return date. The Appellate Division determined that the Supreme Court providently exercised its discretion in declining to consider the defendant's opposition, as the defendant failed to provide a valid excuse for the late service.

Deutsche Bank Natl. Trust Co. v. McEnery, NY Slip Op 05023 (2d Dep't September 22, 2021)

Here is the decision.

Service of process.

The plaintiff had the burden of proving that jurisdiction was obtained over the defendant by proper service of process. A process server's affidavit of service constitutes prima facie proof of service.

Chase Home Fin., LLC v. Kahana, NY Slip Op 05022 (2d Dep't September 22, 2021)

Here is the decision.

Summary judgment in a medical malpractice action.

A physician moving for summary judgment dismissing the complaint must establish, prima facie, either that there was no departure from accepted standards of medical care, or that any departure was not a proximate cause of the plaintiff's injuries. On this showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden.

G. M. C. v. O'Sullivan, NY Slip Op 05020 (2d Dep't September 22 2021)

Here is the decision.

Contractual indemnification in a personal injury action.

The party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.

Barcliff v. Schindler El. Corp., NY Slip Op 05019 (2d Dep't September 22, 2021)

Here is the decision.