Article 78 proceedings.

The court's inquiry is limited to the question of whether the arbiter's determination is arbitrary, capricious, or lacking a rational basis.

Matter of Prismatic Dev. Corp. v. New York City Tr. Auth., NY Slip Op 07072 (1st Dep't December 16, 2021)

Here is the decision.

Bills of particulars.

What the plaintiff styles as a supplemental bill of particulars asserting a new theory of liability is actually an amended bill of particulars. It is a nullity because it was served after note of issue, after defendant filed its summary judgment motion, and without leave of court.

Stovall v. Lenox Hill Hosp., NY Slip Op 07004 (1st Dep't December 16, 2021)

Here is the decision.

Common-law indemnification.

A party who is held vicariously liable for another party's negligence may seek to recover damages from the wrongdoer. 

Cobblestone Foods, LLC v. Branded Concept Dev., Inc., NY Slip Op 06984 (2d Dep't December 15, 2021)

Here is the decision.

Statutory interpretation.

The primary consideration is to discern and give effect to the Legislature's intention, and the statutory text is the surest indicator of legislative intent. Courts should construe unambiguous language so as to give effect to its plain meaning. When the plain language of the statute is precise and unambiguous, it is determinative.

Bank of Am., N.A. v. Kessler, NY Slip Op 06979 (2d Dep't December 15, 2021)

Here is the decision.

Civil usury.

A person may not charge, take, or receive any money as interest on a loan at a rate exceeding the maximum permissible interest rate of 16% per year. A usurious contract is void and relieves the borrower of the obligation to repay principal and interest thereon.

Adler v. Marzario, NY Slip Op 06977 (2d Dep't December 15, 2021)

Here is the decision.

CPLR 2221[e][2].

A motion for leave to renew will be denied where the purported new facts are not material and would not change the prior determination.

Casillas-Reyes v. John, NY Slip Op 06943 (1st Dep't December 14, 2021)

Here is the decision.

Christmas 1943.

Christmas Eve 1964.

Limitations period on an incidental claim.

Plaintiff's claim for fraud is incidental to his conversion claim, and so it is subject to the three-year limitations period as applicable to the conversion claim.

Lyman v. J.P. Morgan Chase & Co., NY Slip Op 06954 (1st Dep't December 14, 2021)

Here is the decision.

CPLR 3123.

A notice to admit is limited to admissions regarding facts as to which the party requesting the admission reasonably believes there can be no substantial dispute.

Marchese v. Aston, NY Slip Op 06959 (1st Dep't December 14, 2021)

Here is the decision.

Indemnification.

A party may not recover in common-law indemnity for its own breach of contract. 

Shah v. 20 E. 64th St., LLC, NY Slip Op 06071 (1st Dep't December 14, 2021)

Here is the decision.

A dismissed trip and fall action.

The City established prima facie that it adequately designed, constructed, and maintained its roadway in a reasonably safe condition, including the median barrier at issue. Plaintiff's expert opined that good and accepted engineering and transportation industry safety practices required that the barrier have reflective tape or paint on it and that the opening be enlarged or the crosswalk narrowed. However, the opinion is unsupported by a published standard or evidence that the practices are generally accepted. Moreover, plaintiff's photograph, which purported to show the lighting conditions on the night of the accident, was unauthenticated, as plaintiff failed to aver that the photograph was taken at the actual location, he had disclaimed having any photographs of the location at his deposition 18 months after the accident, and another witness testified that he was unsure which intersection was depicted.

Warshak v. City of New York, NY Slip Op 06974 (1st Dep't December 14, 2021)

Here is the decision.

CPLR 309.

"Personal service upon an infant shall be made by personally serving the summons within the state upon a parent or any guardian or any person having legal custody or, if the infant is married, upon an adult spouse with whom the infant resides, or, if none are within the state, upon any other person with whom he resides, or by whom he is employed." Here, the process server attested that he served the infant-defendant pursuant to CPLR 308(2) by delivering a copy of the summons and complaint to the housekeeper at the infant's dwelling place and then completing the requisite mailing. Thus, the action is jurisdictionally defective as against the infant. Because the Supreme Court never had personal jurisdiction over the infant, it was improper to amend the summons and complaint to substitute the guardian, in her representative capacity, as a party-defendant in the infant's place.

US Bank N.A. v. McGown, NY Slip Op 06879 (2d Dep't December 8, 2021)

Here is the decision.

Apellate practice.

The Appellate Division will not consider an argument that presents factual issues that were not submitted to the motion court.

Hess v. EDR Assets LLC, NY Slip Op 06920 (1st Dep't December 9, 2021)

Here is the decision.

Arbitrability.

The courts will decide the issue of arbitrability unless there is a clear and unmistakable agreement to arbitrate the issue. Here, there is such an agreement because the parties incorporated the American Arbitration Association's rules into their arbitration provision.

Schindler v. Cellco Partnership, NY Slip Op 06931 (1st Dep't December 9, 2021)

Here is the decision.

Vacating an arbitration award.

A court may vacate the award only if it violates strong public policy, is irrational, or exceeds a specifically enumerated limitation on the arbitrator's power, pursuant to CPLR 7511[b][1] [iii]. Under the Federal Arbitration Act (FAA), the arbitrator may be deemed to have exceeded his powers by manifestly disregarding the law, but only where some egregious impropriety is apparent.

Matter of Anderson v. AHS (At Home Solutions, LLC), NY Slip Op 06917 (1st Dep't December 9, 2021)

Here is the decision.

Implied easements.

The easement may be implied from pre-existing use on a showing of three elements: 1) unity and subsequent separation of title; (2) prior to separation, the claimed easement must have been so long continued and obvious or manifest as to show that it was meant to be permanent; and (3) the use must be necessary to the beneficial enjoyment of the land retained, and not merely convenient. The law does not favor implied easements.

Bonadio v. Bonadio, NY Slip Op 06830 (2d Dep't December 8, 2021)

Here is the decision.

Summary jdugement and discovery.

The Appellate Division rejected defendant's argument that summary judgment was premature on the ground that additional discovery was necessary. The action was commenced in 2017, and defendant did not move to strike the note of issue that was filed in 2019. Discovery is closed, and, in any event, the record supports plaintiff's assertion that defendant was afforded every opportunity to engage in meaningful discovery, but chose not to do so.

Signature Fin. LLC v. Garber, NY Slip Op 06784 (1st Dep't December 2, 2021)

Here is the decision.

Appellate practice.

Plaintiff's claims are not reviewable because he expressly abandoned them, on the record in open court and in a submission required by the court during motion practice. 

Sitt v. Sitt, NY Slip Op 06785 (1st Dep't December 2, 2021)

Here is the decision.

A defendant's motion to exclude the testimony of plaintiff's expert.

The motion is denied because the objections to the expert's qualifications and conclusions go to the weight and not the admissibility of the expert's testimony.

SQN Asset Servicing, LLC v. Shunfeng Intl. Clean Energy Ltd., NY Slip Op 06786 (1st Dep't December 2, 2021)

Here is the decision.

The best evidence rule.

The rule requires the production of an original writing where its contents are in dispute and sought to be proven. Under an exception to the rule, secondary evidence of the contents of an unproduced original may be admitted if the trial court finds that the proponent has sufficiently explained the unavailability of the original and that the secondary evidence reliably and accurately portrays the original. The fact-finder will determine the weight to be given to the secondary evidence. 

Casanas v. Carlei Group, LLC, NY Slip Op 06787 (1st Dep't December 2, 2021)

Here is the decision.

Proper service.

A process server's affidavit constitutes a prima facie showing of proper service. However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing. Here, the affidavit reflects that the defendant was served pursuant to CPLR 308(2)  by delivery of the summons and complaint to a person of suitable age and discretion at the mortgaged premises, followed by the required mailing to the address of the premises. The affidavit sets forth a detailed description of the person of suitable age and discretion, and states that the person represented to the process server that the premises was the defendant's "dwelling house." The defendant rebutted the presumption of valid service with an affidavit in which he averred that the premises was not his dwelling house or usual place of abode, and that his residence was located at a different specified address. He further averred that he had no knowledge of anyone being served on his behalf, and that he had not received a copy of the summons and complaint. Under these circumstances, a hearing on the issue of whether the defendant was properly served is warranted.

Bank of N.Y. v. Dutan, NY Slip Op 06668 (2d Dep't December 1, 2021)

Here is the decision.

CPLR 5015(a)(4).

Although a party moving to vacate a default must normally demonstrate a reasonable excuse and a meritorious defense, the movant is relieved of that obligation when lack of personal jurisdiction is asserted as the ground for vacatur.

Bank of N.Y. v. Dutan, NY Slip Op 06668 (2d Dep't December 1, 2021)

Here is the decision.

CPLR 3215(c).

"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." A defendant may waive the right to seek dismissal by serving an answer or taking any other steps which may be viewed as a formal or informal appearance. Here, the defendant waived the right to seek dismissal by cross-moving for a declaration that she was not in default and for leave to file a late answer, without seeking to dismiss the complaint as abandoned.

HSBC Bank USA, N.A. v. Ranasinghe, NY Slip Op 06610 (2d Dep't November 24, 2021)

Here is the decision.

December 7, 1941.

CPLR 5001(a).

The statute requires that there be a "sum awarded" upon which interest can be calculated. However, a replevin plaintiff may recover both possession of his property and damages for its wrongful detention, and where the property is merchandise kept for sale which has not depreciated in value, the measure of damages is interest on the value from the time of the wrongful taking. The rationale for awarding interest is that if the defendant had not taken the plaintiff's property, the plaintiff could have sold it at any time and then he would have had its value and whatever he could have earned on that value.

Reif v. Nagy, NY Slip Op 06659 (1st Dep't November 30, 2021)

Here is the decision.

CPLR 5511.

Defendant's failure to submit timely papers in opposition to plaintiff's motion for summary judgment, or obtain permission to submit late papers, is a default on the motion. The remedy is not an appeal, but a motion to vacate the default.

U.S. Bank N.A. v. Tiburcio, NY Slip Op 06662 (1st Dep't November 30, 2021)

Here is the decision.

CPLR 3211(a)(7).

Where evidentiary material is submitted and considered on a motion to dismiss for failure to state a claim, and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. The motion will be denied absent a showing that a material fact as claimed by the plaintiff is not a fact, and unless the purported fact is undisputed.

Halo v. Schmidt, NY Slip Op 06609 (2d Dep't November 24, 2021)

Here is the decision.

CPLR 317.

A defendant who has been served with a summons and complaint other than by personal delivery may defend the action upon the court's finding that the defendant did not personally receive notice of the summons and complaint in time to defend and has a potentially meritorious defense. The mere denial of receipt of the summons and complaint is insufficient to establish lack of actual notice.

Citimortgage v. Stuckova, NY Slip Op 06605 (2d Dep't November 24, 2021)

Here is the decision.

A motion to vacate a stipulation of settlement.

The motion court providently exercised its discretion in denying plaintiff's motion. The record includes a so-ordered stipulation signed by counsel following an allocution by plaintiff. In support of the motion, plaintiff only offers self-serving affidavits that he was debilitated when he entered into the settlement. Plaintiff's motion papers include a surgical report showing that he was debilitated when he received emergency medical treatment, five weeks after entering into the settlement. The report is neither admissible nor probative, as it is unaffirmed and uncertified, and it offers no opinion as to whether plaintiff was debilitated at the time of the settlement. There is nothing in the allocution transcript to indicate that plaintiff did not understand the proceedings.

Sultan v. Connery, NY Slip Op 06567 (1st Dep't November 23, 2021)

Here is the decision.

A special employer's liability on a Labor Law claim.

The action, as against a special employer, is barred by Workers' Compensation Law §§ 11 and 29. There is a rebuttable presumption against special employment. In order to rebut the presumption, the defendant must show  conclusively that it had assumed exclusive control over the manner, details, and ultimate result of the employee's work.

Winkler v. Halmar Intl., LLC, NY Slip Op 06569 (1st Dep't November 23, 2021)

Here is the decision.