Preliminary injunctions.

In order to succeed, the movant must establish (1) a probability of success on the merits, (2) a danger of irreparable injury in the absence of an injunction, and (3) a balance of the equities in the movant's favor. The decision whether to grant or deny a preliminary injunction is a matter which lies within the sound discretion of the Supreme Court.

Grassfield v. JUPT, Inc., NY Slip Op 05203 (2d Dep't September 21, 2022)

Here is the decision.

Claim preclusion.

Under the doctrine of res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action, as well as all other claims arising out of the same transaction or series of transactions, even if based upon different theories or if seeking a different remedy. 

Here, the Supreme Court incorrectly determined that this action constituted an improper collateral attack on the order and judgment of foreclosure and sale. This action does not challenge that order and judgment, but, instead, concerns the subsequent sale conducted pursuant to the order and judgment. Thus, the granting of the requested relief in the present action would not destroy or impair the rights established by the order and judgment of foreclosure and sale in the prior action.

Fernando v. Wilmington Sav. Fund Socy., NY Slip Op 05202 (2d Dep't September 21, 2022)

Here is the decision.

Limitations period on a claim for wrongful death.

The plaintiffs' proposed cause of action to recover damages for wrongful death is barred by the two-year statute of limitations, pursuant to EPTL 5-4.1. The limitations period is not tolled during the pendency of the application for letters of administration.

Byner v. Murray-Taylor, NY Slip Op 05201 (2d Dep't September 21, 2022)

Here is the decision.

Defaults and personal jurisdiction.

Where a defendant seeking to vacate a default raises a jurisdictional objection, pursuant to CPLR 5015(a)(4), the court must resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default. The plainttiff has the burden of proving that the court has personal jurisdiction over the defendant.  

Deutsche Bank Natl. Trust Co. v. Fernandez, NY Slip Op 05150 (2d Dep't September 14, 2022)

Here is the decision.

Appellate practice.

In this action to recover damages for breach of contract, the Supreme Court did not explain how it calculated the damages award to the plaintiff, and it is not apparent from the record. Therefore, the Appellate Division remits the matter to the Supreme Court to set forth its calculations and the specific evidence it relied upon in determining the damages award. The appeal is held in abeyance in the interim, and the Supreme Court shall file its report with all convenient speed.

C.D.S. Home Improvement Corp. v. Adegoke, NY Slip Op 05149 (2d Dep't September 14, 2022)

Here is the decision.

Res ipsa loquitur.

Res ipsa loquitur is an evidentiary doctrine that, under appropriate circumstances, may be invoked to allow the factfinder to infer negligence from the mere happening of an event. The doctrine follows from the understanding that some events ordinarily do not occur in the absence of negligence. A plaintiff must establish that the injury was caused by an agent or instrumentality within the defendant's exclusive control, and that no act or negligence on the plaintiff's part contributed to the happening of the event. 

Berlich v. Maimonides Med. Ctr., NY Slip Op 05148 (2d Dep't September 14, 2022)

Here is the decision.

The doctrine of primary assumption of risk.

The doctrine applies only where the issue is the absolution of  duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues. Here, the infant plaintiff was injured while using a trampoline in the yard of the defendants' private residence, not in a designated athletic or recreational venue, and the defendants did not actively sponsor or promote the activity. As such, the doctrine is not a bar to liability.

Bell-Moran v. Pena, NY Slip Op 05147 (2d Dep't September 14, 2022)

Here is the decision.

Appellate practice.

The Appellate Division may consider an argument raised for the first time on appeal if the legal issue is determinative and the record on appeal is sufficient to permit review.

Rosa v. 47 E. 34th St. (NY), L.P., NY Slip Op 05144 (September 13, 2022)

Here is the decision.

Suits against New York State.

Because suits against New York State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning the suit must be strictly construed. Pursuant to Court of Claims Act § 11(b), a plaintiff must plead (1) the nature of the claim; (2) the time when the claim arose; (3) the place where it arose; and (4) the damage or injuries alleged to have been sustained. The failure to satisfy any of these conditions is a jurisdictional defect which may not be cured by amendment.

Correa v. State of New York, NY Slip Op 05074 (2d Dep't August 31, 2022)

Here is the decision.

Intrinsic fraud.

The defendant's contention that the plaintiff obtained the clerk's judgment by making false allegations in the complaint amounts to an allegation of intrinsic fraud. A defendant seeking to vacate a default based on intrinsic fraud, pursuant to CPLR 5015(a)(3), must establish a reasonable excuse for the default and a potentially meritorious defense to the action. Here, the defendant failed to establish a reasonable excuse for its default. Since the defendant failed to establish a reasonable excuse for the default, it is unnecessary to consider whether the defendant presented a potentially meritorious defense to the action.

Chase Bank USA, N.A. v. Laroche, NY Slip Op 05073 (2d Dep't August 31, 2022)

Here is the decision.

Newly discovered evidence.

In order to succeed on a motion to vacate an order or judgment on the ground of newly discovered evidence, pursuant to CPLR 5015(a)(2), the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence and that the newly discovered evidence probably would have produced a different result.

Chase Bank USA, N.A. v. Laroche, NY Slip Op 05073 (2d Dep't August 31, 2022)

Here is the decision.

Appellate practice.

Thre is no appeal from a judgment entered upon the default of the appealing party, pursuant to CPLR 5511. However, an appeal from a judgment entered upon the default of the appealing party brings up for review those matters which were the subject of contest before the Supreme Court.  As a general rule, the Appellate Division will not consider issues raised on a subsequent appeal that were raised, or could have been raised, on an earlier appeal which was dismissed for lack of prosecution, although it has inherent jurisdiction to do so. 

275 Clermont, LLC v. Johnson, NY Slip Op 05070 (2d Dep't August 31, 2022)

Here is the decision.

Contract interpretation.

The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent, and the best evidence the contracting parties' intent is what they say in their writing. The parties' words and phrases must, as in all cases involving contract interpretation, be given their plain meaning. Where a contract was negotiated between sophisticated, counseled business people negotiating at arm's length, courts should be especially reluctant to interpret an agreement as impliedly stating something which the parties specifically did not include. Where the contract's terms are clear and unambiguous, the parties' intent must be found within the contract's four corners, giving a practical interpretation to the language employed and reading the contract as a whole. Where a contract fails to specify the time for performance, the law will imply a reasonable time.

255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 05068 (2d Dep't August 31, 2022)

Here is the decision.

Discovery sanctions.

Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading, where a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed. The resolution of discovery disputes and the nature and degree of the penalty to be imposed are matters within the sound discretion of the motion court. Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be disturbed.

Before imposing the drastic remedy of striking a pleading, there must be a clear showing that a party's failure to comply with discovery is willful and contumacious. Such 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.

255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 05067 (2d Dep't August 31, 2022)

Here is the decision.

A Yellowstone injunction.

The injunction stays a landlord's termination of a leasehold while the propriety of the underlying default is litigated. The injunction does not nullify the remedies to which a landlord is otherwise entitled under the parties' contract. Instead, it maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture. In order t o obtain a Yellowstone injunction, the tenant must demonstrate that (1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord's notice to cure; and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises.

255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 05066 (2d Dep't August 31, 2022)

Here is the decision.

Default judgments.

In order to be awarded a default judgment, pursuant to CPLR 3215(f), the plaintiff must submit proof of service of the summons and the complaint, proof of the defendant's default, and proof of the alleged facts constituting the claim. In order to vacate the judgment, the defendant must give a reasonable excuse for its default and demonstrate a potentially meritorious defense to the claim.

195-197 Hewes, LLC v. Citimortgage, Inc., NY Slip Op 05065 (2d Dep't August 31, 2022)

Here is the decision.

Appellate practice.

Prior to answering the complaint, the defendant moved pursuant to CPLR 3211(a)(1) to dismiss the complaint. However, the defendant failed to appear in court on the return date, and the motion was marked off the calendar. Thereafter, the defendant moved to vacate its default in appearing on the return date and to restore its motion to the calendar. The Supreme Court granted the defendant's motion, and the plaintiff appeals. The Appellate Division affirms, but notes that, contrary to the defendant's contention, the Supreme Court's denial of the defendant's motion to dismiss the complaint, in a subsequent order, does not render this appeal academic. 

195-197 Hewes, LLC v. Citimortgage, Inc., NY Slip Op 05064 (2d Dep't August 31, 2022)

Here is the decision.

Contract interpretation.

The best evidence of what parties to a written agreement intend is what they say in their writing. The contract should be read as a harmonious and integrated whole, and each and every part should be given effect. Courts may not, through their interpretation of a contract, add or excise terms or distort the meaning of any particular words or phrases. Neither should an agreement be read to produce a result that is absurd, commercially unreasonable, or contrary to the reasonable expectations of the parties.

Here, the contractual provision that "[t]he Trustee agrees to . . . exercise the rights referred to above for the benefit of all present and future [certificateholders]" imposes an express duty on the trustees to enforce the repurchase protocol for the benefit of the investors. This express language is not discretionary, even though the provision does not use the language "shall" or "must."  The provision employs the language "agrees to," which is also language of commitment. 

IKB Intl., Inc., S.A. v. Wells Fargo Bank, N.A., NY Slip Op 05058 (1st Dep't August 30, 2022)

Here is the decision.

A parent's liability.

As a general rule, parents are not liable for the torts of their children. However, a parent may be held liable where the parent's alleged negligence consists entirely of the failure reasonably to restrain the child from vicious conduct endangering others, when the parent has knowledge of the child's propensity toward such conduct. 

Levine v. George, NY Slip Op 05032 (2d Dep't August 24, 2022)

Here is the decision.

Summary judgment in a negligence action.

There can be more than one proximate cause of an accident, and a defendant moving for summary judgment must show that it is free from fault. Generally, it is for the trier of fact to determine the issue of proximate cause. Here, the defendant failed to establish, prima facie, that the injured plaintiff's action was the sole proximate cause of the incident and that the defendant's employee was free from fault. The motion is denied, without considering the sufficiency of the plaintiffs' opposing papers.

Fiorentino v. Uncle Giuseppe's of Port Wash., Inc., NY Slip Op 05023 (2d Dep't August 24, 2022)

Here is the decision.

A motion to extend time to serve process.

Pursuant to CPLR 306-b, the court may extend the time for service "upon good cause shown or in the interest of justice." "'Good cause" and "interest of justice" are separate and independent statutory standards. In this action, the plaintiffs seek the extension in the interest of justice.

In deciding whether to grant a motion to extend the time for service in the interest of justice, the court must analyze the factual setting of the case and balance the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or the lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of the plaintiff's motion, and prejudice to the defendant

Here, the plaintiffs demonstrated that the action was timely commenced; that service was timely attempted and was believed by the plaintiffs to have been made within 120 days after the commencement of the action but was subsequently found to be defective; that the plaintiffs have a potentially meritorious cause of action; that the statute of limitations has expired; and that the extension of time does not prejudice the defendant.

The motion is granted.

Edwards v. Brooklyn Hosp. Ctr., NY Slip Op 05022 (2d Dep't August 24, 2022)

Here is the decision.

Summary judgment motions.

A party who contends that a summary judgment motion is premature, pursuant to CPLR 3212(f), must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant. Here, the affirmation of the plaintiff's counsel failed to establish either basis. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion. 

Dalrymple v. Morocho, NY Slip Op 05020 (2d Dep't August 24, 2022)

Here is the decision.

Summary judgment motions.

Where the defendant, in its moving papers, fails to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint, it is unnecessary to consider the sufficiency of the papers submitted in opposition,

Colletti v. City of New York, NY Slip Op 05019 (2d Dep't August 24, 2022)

Here is the decision.

A motion to discharge a mechanic's lien.

The defendant's failure to file proof of service of the notice of the lien within 35 days of filing it, as required by Lien Law § 11, automatically terminated the notice as a lien. The plaintiff's motion is granted.

Christopulos v. Christopulos, NY Slip Op 05018 (2d Dep't August 24, 202)

Here is the decision.

Appellate practice.

The appeal from so much of the order as directed a hearing is dismissed. There is no appeal as of right from an order which merely directs a hearing to aid in the disposition of a motion, as it does not decide the motion, and does not affect a substantial right, pursuant to CPLR 5701[a][2][v]. Leave to appeal has not been granted.

Christopulos v. Christopulos, NY Slip Op 05017 (2d Dep't August 24, 2022)

Here is the decision.

Claims for negligent hiring, retention, and supervision.

There is no statutory requirement that a plaintiff plead these causes of action with particularity.

Boyle v. North Salem Cent. Sch. Dist., NY Slip Op 05014 (2d Dep't August 24, 2022)

Here is the decision.

The emergency doctrine.

Pursuant to the doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or otherwise causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. Ordinarily, whether there was an emergency and the reasonableness of a party's response present questions of fact. However, summary judgment may be granted when a party submits sufficient evidence.

Here, the defendants submitted transcripts of the plaintiff's and the defendant-bus driver's deposition testimony. They offered different accounts of the accident, raising a triable issue of fact as to how the accident occurred and which party was at fault. However, the defendants also submitted a bus surveillance video demonstrating that the plaintiff was operating his vehicle in the left turn lane, next to the bus, and then, without warning and despite adequate space in front of the bus, changed lanes directly in front of the bus, in a manner that did not give the bus driver adequate time to avoid the accident. The video established, prima facie, that the defendant was confronted with an emergency not of his own making, leaving him only seconds to react and virtually no opportunity to avoid the collision. Summary judgment is granted, and the complaint is dismissed. 

Anderson v. Metropolitan Transp. Auth., NY Slip Op 05013 (2d Dep't August 24, 2022)

Here is the decision.

The doctrine of collateral estoppel.

Collateral estoppel is a narrower species of res judicata. It precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, regardless of whether the forum or causes of action are the same. In order to invoke the doctrine, the issue must have been material to the first action or proceeding, and essential to the decision that was rendered. 

71-21 Loubet, LLC v. Bank of Am., N.A., NY Slip Op 05012 (2d Dep't August 24, 2022)

Here is the decision.

A claim of legal malpractice.

In order to state a cause of action to recover damages for legal malpractice, the plaintiff must allege that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. In order to establish causation, the plaintiff must plead specific factual allegations demonstrating that, but for the attorney's negligence, the underlying action would have had a more favorable outcome than resulted Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative.

Jean-Paul v. Rosenblatt, NY Slip Op 04958 (2d Dep't August 17, 2022)

Here is the decision.

Appellate practice.

In this action on a promissory note, plaintiffs moved by notice of motion for summary judgment and defendants cross-moved for summary judgment dismissing the complaint for lack of standing. The motion court, by interim order, directed the parties to appear before a court attorney referee to determine if plaintiff had possession of the note when the action was commenced. After a hearing, the referee determined that plaintiffs were in possession of the note. Defendants appeal the referee's determination.

Although captioned "Decision and Order," the referee's decision is not an order determining a motion made on notice, pursuant to CPLR 5701[a][2]. The appeal is dismissed, without prejudice to defendants' taking of an appeal from the ultimate disposition of the summary judgment motions.

Ocwen Loan Servicing, LLC v. Pacheco, NY Slip Op 05009 (1st Dep't August 23, 2022)

Here is the decision.