Notices of claim.

Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against a municipal entity, pursuant to General Municipal Law § 50-e. A petition for leave to serve a late notice of claim upon a public authority may not be made more than one year and 90 days after the event upon which the claim is based, unless the statute of limitations has been tolled. Here, the petitioner timely commenced this proceeding on November 12, 2019, by filing the order to show cause, the affirmation of counsel, and the verified proposed notice of claim. Because the appellants do not claim that a substantial right would be prejudiced, the affirmation and proposed notice of claim are properly viewed as the petition required to commence a special proceeding, pursuant to CPLR 3026. In addition, the statute of limitations was tolled from the time the proceeding was commenced until the date of the order deciding the petition. Therefore, the petition is timely. 

Matter of Cerreta v. County of Suffolk, NY Slip Op 04964 (2d Dep't August 17, 2022)

Here is the decision.

Severability.

Where a contractual provision is unenforceable and there is no severability clause, the entire agreement is unenforceable.

Mercado v. Schwartz, NY Slip Op 04956 (2d Dep't August 17, 2022)

Here is the decision.

An untimely filing of proof of service.

The defendant third-party plaintiff served the third-party defendants pursuant to CPLR 308(2) by delivering the third-party summons and complaint to a person of suitable age and discretion at the address of the third-party defendants' usual place of abode on February 11, 2019, and by mailing copies to the same address the next day. The proofs of service were filed on April 2, 2019, past the 20-day filing period required by CPLR 308(2). The defendant third-party plaintiff moved for leave to enter a default judgment against the third-party defendants, and the third-party defendants opposed the motion on the ground that they had already served a third-party answer. 

While the failure to file a timely proof of service is a curable procedural irregularity, here, the defendant third-party plaintiff did not obtain an order permitting a late filing of proof of service. Accordingly, the late filings were nullities and the third-party defendants' time to answer never began to run. Since the third-party defendants were not in default, the defendant third-party plaintiff's motion for leave to enter a default judgment against the third-party defendants is denied.

K.J. v. Longo, NY Slip Op 04957 (2d Dep't August 17, 2022)

Here is the decision.

Service of process.

Ordinarily, a process server's affidavit establishes a prima facie case as to the method of service. and, therefore, gives rise to a presumption of proper service. Here, the affidavit of service demonstrates, prima facie, that the defendant was served with the summons and complaint pursuant to CPLR 308(4) by affixing a copy of the summons and complaint to the door of his actual dwelling place, and by mailing a copy of the summons and complaint to his last known residence. The defendant argues that he never resided at the address set forth in the affidavit of service. However, the record establishes that the defendant engaged in affirmative conduct which misled the plaintiff into serving process at an incorrect address. Therefore, the defendant is estopped from contending that the address set forth in the affidavit of service is not his dwelling place, pursuant to CPLR 308[2].

Hudson Val. Bank, N.A. v. Eagle Trading, NY Slip Op 04956 (2d Dep't August 17, 2022)

Here is the decision.

Extending the time to answer.

In order to extend the time to answer a complaint and to compel the plaintiff to accept late service of the answer pursuant to CPLR 3012(d), a defendant must submit a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action.  Here, the defendants' excuse that the minimal delay in serving their answer was due to their attorney's illness, as corroborated by medical documentation, is reasonable.

HSBC Bank USA v. Pantel, NY Slip Op 04954 (2d Dep't August 17, 2022)

Here is the decision.

Vacating a default in opposing a motion.

A party seeking to vacate an order or judgment entered upon a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1]. The determination of what constitutes a reasonable excuse is within the sound discretion of the Supreme Court.

Fidelity Bank v. John, NY Slip Op 04952 (2d Dep't August 17, 2022)

Here is the decision.

An action to foreclose a mortgage.

The action is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Even if the mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt. However, where the acceleration occurred by virtue of the filing of a complaint, the noteholder's voluntary discontinuance of that action constitutes, as a matter of law, an affirmative act of revocation of the acceleration, absent the noteholder's express and contemporaneous statement to the contrary.

Deutsche Bank Natl. Trust Co. v. Fresca, NY Slip Op 04948 (2d Dep't August 17, 2022)

Here is the decision.

A motion to hold a party in civil contempt.

In order to prevail on the motion, the movant must establish, by clear and convincing evidence (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate; (2) the appearance, with reasonable certainty, that the order was disobeyed; (3) that the party to be held in contempt had knowledge of the court's order; and (4) prejudice to the right of a party to the litigation. Wilfulness is not an element of civil contempt, but the party alleged to be in contempt may offer as a defense evidence of his inability to comply with the order or judgment. The motion is entrusted to the sound discretion of the court.

Bauman v. Bauman, NY Slip Op 04945 (2d Dep't August 17, 2022)

Here is the decision.

Sua sponte dismissal.

Pursuant to CPLR 3216, a court, on its own initiative and with notice to the parties, may dismiss a party's pleading when that party unreasonably neglects to proceed in an action. Here, dismissal was not appropriate, as issue had not been joined and the court failed to give notice to the plaintiff to resume prosecution at least 90 days prior to directing dismissal, as required by CPLR 3216[b)(1), (3).

Bankunited v. Kaur, NY Slip Op 04944 (2d Dep't August 17, 2022)

Here is the decision.

A motion for an extension of time to effect service.

Pursuant to CPLR 306-b, a court, in the exercise of discretion, may grant the motion for good cause shown or in the interest of justice. Here, there was no good cause shown, since the plaintiff was unable to produce the process server to testify at the hearing, and thus failed to demonstrate that it had made reasonably diligent efforts to effect service. Further, in view of the plaintiff's extensive delay in seeking the extension, it is not warranted in the interest of justice.

BAC Home Loans Servicing, L.P. v. Tessler, NY Slip Op 04943 (2d Dep't August 17, 2022)

Here is the decision.

A cause of action for negligence.

In a negligence action, a plaintiff moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff, and that the defendant's negligence was a proximate cause of the alleged injuries. The plaintiff does not bear the burden of establishing the absence of his own comparative fault.

E.B. v. Gonzalez, NY Slip Op 04942 (2d Dep't August 17, 2022)

Here is the decision.

Appellate practice.

The appellant may not raise arguments concerning an order that was the subject of an earlier appeal that was dismissed.

Genger v. Genger, NY Slip Op 04940 (1st Dep't August 16, 2022)

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Entry of judgment after a default.

Pursuant to CPLR 3215(c), "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default," the court will not enter judgment and will dismiss the complaint as abandoned. The plaintiff does not have to actually obtain a default judgment within one year, or even seek it, at least not specifically. As long as the plaintiff initiates proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint.

Deutsche Bank Natl. Trust Co. v. Khalil, NY Slip Op 04898 (2d Dep't August 10, 2022)

Here is the decision.

Appellate practice.

The defendants failed to submit papers to the Supreme Court in opposition to the plaintiff's application for an award of attorneys' fees and disbursements, and the application was granted on default. Since the order appealed from was entered upon the defendants' default, the appeal must be dismissed , pursuant to CPLR 5511.

Cortazar v. Cortazar, NY Slip Op 04897 (2d Dep't August 10, 2022)

Here is the decision.

The doctrine of danger invites rescue.

The doctrine applies only if there is evidence that the victim to be rescued is in imminent and life-threatening peril. Where the doctrine is applicable, it is a foreseeable risk that a plaintiff would attempt to rescue the victim of the defendant's negligence, to the extent that the negligence is not wanton.

Corpin v. Derive Tech, LLC, NY Slip Op 04896 (2d Dep't August 10, 2022)

Here is the decision.

Agreements to arbitrate.

Arbitration is a matter of contract, and arbitration clauses are subject to ordinary principles of contract interpretation. Therefore, they must be enforced according to their terms. However, the fact there is an agreement to arbitrate is not a defense to a plenary action, and it is not a basis for a motion to dismiss.

Chalom v. Areivim USA, NY Slip Op 04895 (2d Dep't August 10, 2022)

Here is the decision.

Defaulting defendants.

A defaulting defendant admits all traversable allegations in the complaint and the basic allegation of liability, but does not admit the plaintiff's conclusion as to damages. The sole issue to be determined at the inquest is the extent of damages sustained by the plaintiff.

Cerullo, LLC v. John D. Rocco Sales Co., LLC, NY Slip Op 04894 (2d Dep't August 10, 2022)

Here is the decision.

A defaulting defendant is entitled to present testimony and evidence and cross-examine the plaintiff's witnesses at the inquest on damaages.

Brasil-Puello v. Weisman, NY Slip Op 04893 (2d Dep't August 10, 2022)

Here is the decision.

Summary judgment in a slip-and-fall action.

The movant-defendant has the initial burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had actual or constructive notice of it. Here, in support of its motion, the defendant submitted transcripts of the deposition testimony of the plaintiff and of an employee of the defendant. The plaintiff testified that she slipped on something slimy and soapy on the floor of the restroom. The defendant's employee testified that she had recently mopped that floor with a diluted cleaning solution. Therefore, the defendant failed to establish, prima facie, that it did not create the alleged hazardous condition. Since the defendant did not establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact.

Bianchini v. Genting N.Y., LLC, NY Slip Op 04891 (2d Dep't August 10, 2022)

Here is the decision.

A supplemental bill of particulars.

Pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing continuing special damages and disabilities, without leave of court, at any time, but not less than 30 days prior to trial, if it alleges no new cause of action or claims no new injury.'

Here, the second supplemental bill of particulars did not allege new injuries, but set forth the continuing consequences of the same injuries which were previously alleged. In addition, since the supplemental bill  was served more than 30 days prior to trial, leave of court was not required. 

Ali v. JS 39, LLC, NY Slip Op 04889 (2d Dep't August 10, 2022)

Here is the decision.

Leave to amend a bill of particulars.

Generally, in the absence of prejudice or surprise, leave to amend a bill of particulars should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. However, once discovery is completed and the case has been certified as ready for trial, a party will not be permitted to amend except upon a showing of special and extraordinary circumstances.  Leave may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant. In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion is predicated, whether there is a reasonable excuse for the delay, and whether there is any resulting prejudice.

Achee v. Merrick Vil., Inc., NY Slip Op 04888 (2d Dep't August 10, 2022)

Here is the decision.

A negligent hiring claim.

There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.

Maldonado v. Allum, NY Slip Op 04798 (2d Dep't August 3, 2022)]

Here is the decision.

Real property and the duty to protect.

While a possessor of real property has a duty to maintain its premises in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous.

Hallahan v. City of New York, NY Slip Op 04791 (2d Dep't August 3, 2022)

Here is the decision.

A defendant is deemed to have constructive notice of a dangerous condition on its property when the condition is visible and apparent, and existed for a sufficient length of time prior to the accident to permit the defendant's employees to discover the condition and remedy it. In moving to dismiss on basis of notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the accident. Mere reference to the defendant's general daily cleaning practices will not suffice.  Here, the affidavit of the defendant's groundskeeper, who described his general daily cleaning practices, failed to establish, prima facie, that the defendant lacked constructive notice of the dangerous condition.

Hegeman v. City of Newburgh, NY Slip Op 04792 (2d Dep't August 3, 2022)

Here is the decision.

A summary judgment motion in a slip-and-fall action.

A plaintiff is not required to establish his freedom from comparative negligence to be entitled to summary judgment on the issue of liability. However, the issue of the plaintiff's comparative negligence may be decided on a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.

Ellerin-Diefenbach v. Autumn Sky Dev. Co., Inc., NY Slip Op 04789 (2d Dep't August 3, 2022)

Here is the decision.

Failure to prosecute.

Courts have no authority to dismiss an action for failure to prosecute, whether on the ground of general delay or for failure to serve and file a note of issue, unless there has first been served a 90-day notice, pursuant to CPLR 3216[b][3].

Cooper v. Mt. Sinai Hosp., NY Slip Op 04787 (2d Dep't August 3, 2022)

Here is the decision.

Appellate practice.

Generally, an appeal from a final judgment brings up for review any non-final judgment or order which necessarily affects the final judgment, pursuant to CPLR 5501[a][1]. However, since no appeal lies from an order denying reargument, the order denying defendants' motion for leave to reargue their prior motion to dismiss is not brought up for review. Where a judgment is based on the appellant's default, review is limited to matters which were the subject of contest below Thus, the order granting plaintiff's unopposed motion to strike defendants' answer and for leave to enter a default judgment on the issue of liability is not reviewable on the appeal from the judgment.

Brightside Home Improvements, Inc. v. Northeast Home Improvement Servs., NY Slip Op 04785 (2d Dep't August 3, 2022)

Here is the decision.

An action to recover on a promissory note.

Plaintiff appeals from an order denying its motion for summary judgment on the complaint. The Appellate Division reverses and grants the motion. Plaintiff established, prima facie, its entitlement to judgment as a matter of law by submitting a copy of the note and defendant's payment history, evincing defendant's obligations under the note and his failure to make a payment in accordance with its terms. The affidavit of plaintiff's recovery supervisor established that plaintiff's business records satisfied the admissibility requirements of CPLR 4518(a). In opposition, defendant failed to raise a triable issue of fact as to any bona fide defense, as his contentions were unsubstantiated and speculative.

Branch Banking & Trust Co. v. Myrthil, NY Slip Op 04784 (2d Dep't August 3, 2022)

Here is the decision.

Legal malpractice.

The Appellate Division determined that Supreme Court properly dismissed plaintiff's legal malpractice cause of action in the original complaint because he failed to allege that "but for" defendant's negligent conduct, he would have prevailed in the underlying action. Plaintiff's citation to a ruling in the underlying action denying dismissal of his fraud claim, among others, did not, without more, show that he would have prevailed in the underlying action had defendant timely commenced it by naming the proper parties in the original complaint.

Markov v. Barrows, NY Slip Op 04780 (1st Dep't August 2, 2022)

Here is the decision.

Summary judgment.

The Appellate Division affirmed the denial of plaintiff's motion for summary judgment on its claim for unpaid premiums due. The motion was made before any discovery had been conducted and, therefore, was premature. In opposition, defendant pointed out that this was plaintiff's second motion and that no new evidence had been presented. It submitted an affidavit by its president, who averred, "Plaintiff possesses documents that will prove my defenses against their claim against me, and discovery is needed in order to obtain these documents." In addition, defendant raised an issue of fact as to the accuracy of the audit on which the premium was based by submitting an affidavit by a certified public accountant with personal knowledge of the audit who averred that he had communicated with plaintiff's auditor that the audit was incorrect and requested a second audit.

Burlington Ins. Co. v. 54th St. Auto Ctr., Inc., NY Slip Op 04779 (1st Dep't August 2, 2022)

Here is the decision.

Res judicata and collateral estoppel.

Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding.

The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue that was clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of actions are the same. There are two requirements for its application: first, the identical issue necessarily must have been decided in the prior action and be decisive in the present action, and second, the party to be precluded must have had a full and fair opportunity to contest the prior determination. The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination.

Cullen v. Moschetta, NY Slip Op 04713 (2d Dep't July 27, 2022)

Here is the decision.

Waiver of an objection to personal jurisdiction.

The filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss, pursuant to CPLR 3211(a)(8), for lack of personal jurisdiction.

Wilmington Trust Co. v. Valdivieso, NY Slip Op 04757 (2d Dep't July 27, 2022)

Here is the decision.

Discovery disputes.

Resolution of discovery disputes and the nature and degree of any penalty to be imposed, pursuant to CPLR 3126, is within the sound discretion of the motion court. When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court's discretion to strike or dismiss a pleading. The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time

Here, the plaintiff's repeated failure to appear for a deposition, in violation of multiple Supreme Court orders, coupled with his failure to demonstrate a reasonable excuse for that failure, supports an inference that his conduct was willful and contumacious. It was a provident exercise of the court's discretion to grant the defendant's motion to strike the complaint.

Sheikh v. Poplardo, NY Slip Op 04753 (2d Dep't July 27, 2022)

Here is the decision.