Failure to appear at a hearing.

A party seeking to vacate an order entered upon his failure to appear at a hearing must demonstrate a reasonable excuse for the default and a potentially meritorious claim or defense to be raised at the hearing, pursuant to CPLR 5015[a][1]. The motion court has to discretion to determine what is a reasonable excuse, and the court may accept law office failure, pursuant to CPLR 2005. Mere neglect is not a reasonable excuse.

Here, the plaintiff attributed its failure to appear on the adjourned hearing date to law firm neglect and lack of diligence in properly calendaring the adjournment. This is not a reasoable excuse, and the motion to vacate is denied.

Residential Mtge. Loan Trust v. Battle, NY Slip Op 04750 (2d Dep't July 27, 2022)

Here is the decision.

Legal malpractice.

A plaintiff seeking to recover damages for legal malpractice must prove that the defendant-attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. A defendant seeking summary judgment dismissing the claim must establish, prima facie, that he did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages. In order to establish causation, a plaintiff must show that he would have prevailed in the underlying action, or that, but for the lawyer's negligence, he would not have incurred any damages.

Here, the plaintiff retained the defendant-law firm to represent her in a personal injury action against the driver of the car that struck her while she was leaving work. After the plaintiff became dissatisfied with the firm's representation of her, she discharged the firm. Thereafter, the plaintiff applied for Workers' Compensation benefits, but the claim was denied as time-barred because it was filed more than two years after the accident. The plaintiff alleges that the firm committed malpractice because it failed to file for Workers' Compensation benefits on her behalf and misadvised her regarding her right to file a Workers' Compensation claim. 

The firm demonstrated, prima facie, that the plaintiff would not have prevailed in her claim for Workers' Compensation benefits. The evidence established that the underlying accident was related to a risk shared by the general public, as opposed to a special hazard connected to the plaintiff's employment. The plaintiff failed to raise a triable issue of fact, and the firm's summary judgment motion dismissing the complaint is granted.

Provenzano v. Cellino & Barnes, P.C., NY Slip 04749 (2d Dep't July 27, 2022)

Here is the decision.

Liquidated damages.

Whether a liquidated damages provision in a contract is an unenforceable penalty is a question of law for the court. The party seeking to avoid liquidated damages has the burden to prove that they are an unenforceable penalty. If the amount is grossly disproportionate to the probable loss, the provision is a penalty, and courts will not enforce it.  In the absence of any countervailing public policy concerns, freedom of contract prevails in an arm's length transaction between sophisticated parties.

Seymour v. Hovnanian, NY Slip Op 04705 (1st Dep't July 26, 2022)

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Appellate practice.

There is no appeal as of right from an order that is not made on notice.

Chen v. Romona Keveza Collection LLC, NY Slip Op 04702 (1st Dep't July 26, 2022)

Here is the decision.

In this foreclosure action, the plaintiff's mailing of a 90-day notice did not comply with RPAPL 1304. Although defendants failed to raise this point before the motion court, the issue of plaintiffs' strict compliance with the statute was before the motion court and the noncompliant nature of the notice may be addressed on appeal, as the deficiency is apparent on the face of the record and could not have been avoided if it had been brought to the court's attention at the time.

U.S. Bank N.A. v. Maioriello, NY Slip Op 04706 (1st Dep't July 26, 2022)

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Plaintiff's failure to appear at a conference.

In order to vacate a default in appearing at a scheduled court conference, the plaintiff must demonstrate both a reasonable excuse and a potentially meritorious cause of action. The court may accept law office failure as a reasonable excuse where there is a detailed and credible explanation. Mere neglect is not a reasonable excuse.

Bambrick v. City of New York, NY Slip Op 04617 (2d Dep't July 20, 2022)

Here is the decision.

A premises liability action.

Prroperty owners and parties in possession or control of real property have a duty to maintain the property in a reasonably safe condition. In moving for summary judgment, the defendant has the initial burden of making a prima facie showing that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it. There is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. Whether the condition is dangerous or defective depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury, precluding summary dismissal.

R.B. v. Sewanhaka Cent. High Sch. Dist., NY Slip Op 04616 (2d Dep't July 20, 2022)

Here is the decision.

Vacating a default.

A defendant seeking to vacate a default in answering a complaint, pursuant to CPLR 5015(a,) must show both a reasonable excuse for the default and the existence of a potentially meritorious defense. Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits.

6 Crannell St., LLC v. Urban Green Equities, LLC, NY Slip Op 04613 (2d Dep't July 20, 2022)

Here is the decision.

A hospital's liability for a physician's actions.

Under the doctrine of respondeat superior, the hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the scope of their employment, but not for negligent treatment provided by an independent physician, as when the physician is retained by the patient. However, the hospital may be vicariously liable for the treatment provided by an independent physician if the patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the plaintiff's choosing, or if the nonemployee physician acts as an agent of the hospital or the hospital exercises control over the physician.

Vargas v. Lee, NY Slip Op 04661 (2d Dep't July 20, 2022)

Here is the decision.

Amending a pleading.

Pursuant to CPLR 3025(b), defendants may amend their answer to include a new defense "at any time by leave of court or by stipulation of all parties." The determination to permit or deny an amendment is committed to the sound discretion of the trial court. Leave should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and any delay in moving to amend does not prejudice or surprise the opposing party. 

Siddiqui v. Smith, NY Slip Op 04660 (2d Dep't July 20, 2022)

Here is the decision.

Medical malpractice actions.

The requisite elements of proof are a deviation or departure from accepted community standards of practice and evidence that the departure was a proximate cause of the plaintiff's injury. On a motion for summary judgment, the defendant-doctor must make a prima facie showing that there was no departure from good and accepted medical practice, or that, if there was, the plaintiff was not injured thereby. In opposition, the plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, demonstrating that there is a triable issue of fact. General and conclusory allegations of malpractice, unsupported by competent evidence tending to establish the elements of the claim, are insufficient to defeat the motion. In order not to be considered speculative or conclusory, expert opinions in opposition must address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record.

Shirley v. Falkovsky, NY Slip Op 04659 (2d Dep't July 20, 2022)

Here is the decision.

A motion for summary judgment on causation.

A moving defendant cannot meet its prima facie burden by pointing to gaps or deficits in the plaintiff's case. Therefore, in order to prevail on the motion, the defendant must affirmatively prove that, as a matter of law, there was no causation.

Dyer v. Amchem Prods. Inc., NY Slip Op 04906 (1st Dep't July 19, 2022)

Here is the decision.

The limitations period in an action to foreclose a mortgage.

The action must be commenced within six years, pursuant to CPLR 213[4]. Where the mortgage debt is payable in installments, a separate cause of action accrues for each installment that is not paid, and the  limitations period begins to run on the date that each installment becomes due. However, even where a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the limitations period begins to run on the entire debt. Acceleration of a mortgage debt requires some affirmative action evidencing the holder's election to take advantage of the accelerating provision. Here, since the defendant failed to produce any evidence that the mortgage debt had been accelerated, she failed to demonstrate that the complaint was time-barred as to the recovery of any payments due, or advances made, on or after October 13, 2012.

Citibank, N.A. v. Jones, NY Slip Op 04533 (2d Dep't July 13, 2022)

Here is the decision.

Jurisdiction over an employee's negligence claim.

Primary jurisdiction regarding the applicability of the Workers' Compensation Law is vested in the Workers' Compensation Board, and the court cannot express its view on the matter pending the Board's determination as to its jurisdiction. Here, there is a question of fact as to whether the plaintiff was injured during the course of her employment, and so the court must refer the matter to the Workers' Compensation Board.

 Chin v. Doherty Enters., NY Slip Op 04532 (2d Dep't July 13, 2022)

Here is the decision.

CPLR 4404(a).

A motion to set aside a verdict and for a new trial in the interest of justice 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 rely on his own common sense, experience and sense of fairness and decide whether substantial justice has been done and whether it is likely that the verdict has been affected.

Bhim v. Platz, NY Slip Op 04531 (2d Dep't July 13, 2022)

Here is the decision.

A fraud on the court.

A fraud on the court involves wilful conduct that is deceitful and obstructionistic, and which injects into the judicial process misrepresentations and false information so serious that it undermines the integrity of the proceeding. In order to demonstrate fraud on the court, the nonoffending party must establish, by clear and convincing evidence, that the offending party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his adversary's defense of the action. The fraudulent conduct may include proof of fabrication of evidence, perjury, and falsification of documents, and must concern issues that are central to the truth-finding process. Generally, an isolated incident of misconduct will not rise to the level of a fraud on the court. Here, defense counsel's misrepresentation of the subject trial testimony during his summation was inexcusably careless, but it did not constitute a fraud on the court. The Appellate Division notes that  the alleged fraud occurred in the context of a summation, which does not constitute evidence.

Bhim v. Platz, NY Slip Op 04531 (2d Dep't July 13, 2022)

Here is the decision.

CPLR 3215(f).

A plaintiff moving for leave to enter a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's failure to answer or appear.  In order to defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that there is a reasonable excuse for the default and a potentially meritorious defense.

Bank of N.Y. v. DeJohn, NY Slip Op (2d Dep't July 13, 2022)

Here is the decision.

Contractual indemnification.

The right to contractual indemnification depends on the specific language of the contract at issue. A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances. The Appellate Division notes that, in addition, a party seeking contractual indemnification pursuant to a contract relative to the construction of a building must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor, pursuant to General Obligations Law § 5-322.

Mogrovejo v. HG Hous. Dev. Fund Co., Inc., NY Slip Op 04300 (2d Dep't July 6, 2022)

Here is the decision.

A premises liability action.

The defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the injury without engaging in speculation. Here, the defendant met his prima facie burden through the submission of the transcript of the plaintiff's deposition testimony, which demonstrated that the plaintiff was unable to identify either where on the brick path his injury occurred or what defect in the brick path, if any, caused his ankle to roll.  In opposition, the plaintiffs failed to raise a triable issue of fact. Plaintiffs' expert report failed to establish a causal link between the alleged injury and unspecified defects in the brick path that the expert observed more than four years after the injured plaintiff's accident.

Mercurio v. Dayton, NY Slip Op 04298 (2d Dep't July 6, 2022)

Here is the decision.

CPLR 3212[f].

If it appears from affidavits submitted in opposition to a summary judgment motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had. Here, plaintiff's motion on the issue of liability is denied without prejudice to renewal upon the completion of discovery.

Goldfinger v. Freeland, NY Slip Op 04295 (2d Dep't July 6, 2022)

Here is the decision.

Discovery.

A party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records when that party has waived the physician-patient privilege by affirmatively putting his physical or mental condition in issue. However, a party does not waive the physician-patient privilege with respect to unrelated illnesses or injuries. Here, the plaintiff does not advance broad allegations of physical injury or mental anguish, does not claim exacerbation of preexisting medical conditions in his shoulder or knees, and has expressly disavowed any claim for loss of enjoyment of life, mental anguish, future earnings, or diminished wage capacity. Instead, the plaintiff's allegations and claim for damages are limited to specific injuries to his left elbow and the residual physical effects of that particular injury. Accordingly, the plaintiff has not placed in controversy either his entire medical condition or the prior injuries and medical treatment of his shoulder and knees. The Supreme Court providently exercised its discretion in denying the defendants' motion to compel.

Froehlich v. Kimco Realty Corp., NY Slip Op 04294 (2d Dep't July 6, 2022)

Here is the decision.

Judicial privilege.

Statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, regardless of the motive with which they are made, as long as they are material and pertinent to the issue to be resolved in the proceeding. Here, so much of the complaint as sought to recover damages for the defendant's alleged misrepresentations made during the course of litigation was subject to dismissal for failure to state a claim, pursuant to CPLR 3211(a)(7). However, the privilege does not bar the complaint in its entirety, as each of the eight causes of action also alleges wrongdoing that did not stem from a privileged communication.

Feng Li v. Shih, NY Slip Op 04293 (2d Dep't July 6, 2022)

Here is the decision.

An action to foreclose the mortgage on a home loan.

RPAPL 1304 requires at least 90 days notice to the borrower before a lender, an assignee, or a mortgage loan servicer commences the action. The statute provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower. Strict compliance with the statutory notice is a condition precedent to commencing the action, and the plaintiff has the burden of establishing satisfaction of this condition.

Federal Natl. Mtge. Assn. v. Young, NY Slip Op 04292 (2d Dep't July 6, 2022)

Here is the decision.

Contract law and illiteracy.

A claim of illiteracy in the English language is insufficient to avoid the rule that a party who signs a contract without any valid excuse for having failed to read it is conclusively bound by its terms. A party who cannot read English must make an effort to have the document read to him. 

Emigrant Mtge. Co., Inc. v. Public Adm'r of Kings County, NY Slip Op 04291 (2d Dep't July 6, 2022)

Here is the decision.

The Workers' Compensation Law.

Pursuant to the statute, an employee's recovery of workers' compensation benefits is the exclusive remedy against his employer or coworkers for injuries sustained in the course of employment. Here, summary judgment dismissing the complaint is denied because the defendants submitted conflicting evidence regarding the identity of the plaintiff's employer.

Calixte v. City of New York, NY Slip Op 04286 (2d Dep't July 6, 2022)

Here is the decision.

CPLR 3012(d).

On the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served. Here, in order to compel the plaintiff to accept her untimely answer, the defendant was required to demonstrate both a reasonable excuse for the delay and a potentially meritorious defense. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. The Appellate Division held that the Supreme Court improvidently exercised its discretion in finding that the defendant proffered a reasonable excuse for her untimely answer. The bare allegation by the defendant's attorney that the delay was caused by the defendant's insurance carrier is insufficient to excuse the delay in answering the complaint. The absence of a reasonable excuse for the default renders it unnecessary to determine whether she demonstrated the existence of a potentially meritorious defense. 

Goldstein v Ilaz, NY Slip Op 04154 (2d Dep't June 29, 2022)

Here is the decision.

An insufficient slip-and-fall claim.

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.

Barnett v. Fusco, NY Slip Op 04147 (2d Dep't June 29, 2022)

Here is the decision.

CPLR 3101(a).

Parties are entitled to full disclosure of all matter that is material and necessary in the prosecution or defense of the action. The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the trial court.

Andrade v. Frog Hollow Indus., Inc., NY Slip Op 04146 (2d Dep't June 29, 2022)

Here is the decision.

Default judgment is denied.

The trial court properly denied plaintiff's motion for a default judgment. Defendants were technically in default when they failed to timely answer or move to dismiss after they filed their notice of appearance. However, as the trial court noted in the order on appeal, in an earlier hearing on the motion, the court had sua sponte allowed plaintiff to file a late proof of service. At the same time, the court granted defendants a 30-day extension to respond to the complaint, as of the date of the hearing. As the case docket makes clear, defendants responded to the complaint within that period. In addition, New York has a strong policy in favor of litigating matters on the merits.

MLS Real Estate Consultants, Inc. v. Eisenberg, NY Slip Op 04224 (1st Dep't June 30, 2022)

Here is the decision.

Appellate practice.

The Appellate Division has no jurisdiction to entertain defendant's arguments in support of reversing the part of the order that denied his cross motion for consolidation, because his notice of appeal limited the appeal to the specific part of the order that granted plaintiff's summary judgment motion, pursuant to CPLR 5515[1].

Vandergrand Props. Co., L.P. v. Warnock, NY Slip Op 04229 (1st Dep't June 30, 2022)

Here is the decision.

CPLR 3211(7)(a).

Upon a motion to dismiss for failure to state a claim, the court may reach the merits of a properly pleaded cause of action for a declaratory judgment where no questions of fact are presented by the controversy. In that case, the motion to dismiss should be treated as one seeking a declaration in the defendant's favor and decided accordingly.

50 Clarkson Partners, LLC v Old Republic Natl. Tit. Ins. Co. NY Slip Op 04144 (2d Dep't June 29, 2022)

Here is the decision.