An age discrimination claim.

Defendant established its entitlement to summary judgment dismissing the complaint, as it articulated a legitimate, nondiscriminatory reason for firing plaintiff from his employment as a cleaner, namely, plaintiff's unsatisfactory work performance and his failure to improve despite multiple warning letters. Defendant submitted tenant complaints regarding the uncleanliness of the bathrooms and the warning letters it issued to plaintiff about his poor performance,  supporting its claim that plaintiff was terminated not because of his age, but because of his failure to adequately perform his duties. As further evidence that plaintiff was not fired because of his age, defendant showed that it did not fill plaintiff's position after he was terminated but outsourced his job duties to a third-party cleaning service. 

In opposition, plaintiff presented no evidence tending to show that the tenant complaints or the warning letters were inaccurate, much less designed to supply a pretext for age discrimination. Nor does plaintiff show how defendant's failure to give him vacation wages before his vacation was to begin supports a finding of pretext under the circumstances. In addition, plaintiff's assertion that defendant failed to sufficiently warn him about his unsatisfactory job performance is undermined by his own testimony that he saw the letter that suspended him for three days based on tenant complaints regarding his job performance.

The two isolated comments made by plaintiff's supervisor about his intent to retire were merely stray remarks that, without more, do not constitute evidence of discrimination. Even if these remarks suggested bias, defendant established that the supervisor was not involved in the decision to terminate plaintiff's employment, and had no power to hire, fire, or discipline him.

Ahmed v. West 46th St. Mgt., LLC, NY Slip Op 06417 (1st Dep't November 15, 2022)

Here is the decision.

Personal jurisdiction over an out-of-state defendant.

Pursuant to CPLR 302(a)(3), a plaintiff's economic injury in New York is insufficient to confer jurisdiction. The situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred.

HH Trinity Apex Invs. LLC v. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., NY Slip Op 06321 (1st Dep't November 10, 2022)

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Photograph evidence in a slip-and-fall action.

In considering defendant's summary judgment motion, the court properly disregarded the Google Maps photos that defendant submitted in its reply papers. The photos purportedly were taken months before the accident. and there was no affidavit by a person with knowledge of the photos' origins, or knowledge of whether they fairly and accurately portrayed the condition of the sidewalk at the time of accident.

Mercedes v. 680 SN LLC, NY Slip Op 06323 (1st Dep't November 10, 2022)

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Appellate practice.

The doctrine of the law of the case does not bind an appellate court to a trial court ruling.

Morgan Stanley Private Bank, N.A. v. Ceccarelli, NY Slip Op 06324 (1st Dep't November 10, 2022)

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Service of process.

CPLR 308(2) authorizes "[p]ersonal service upon a natural person . . . by delivering the summons within the state to a person of suitable age and discretion at the actual place of business . . . of the person to be served and . . . by mailing the summons by first class mail to the person to be served at his or her actual place of business." CPLR 308(2) provides that "proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later." The failure to file timely proof of service is not a jurisdictional defect, but, instead, is a procedural irregularity that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004.

Chunyin Li v. Joffe, NY Slip Op 06227 (2d Dep't November 9, 2022)

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Newly discovered evidence.

In arguing for vacatur of the order, defendant cannot rely on New York City Council resolutions and the Administrative Code as potentially newly discovered evidence. These legislative materials are matters of public record, and, as such, they are not considered new evidence which could not have been discovered with due diligence. 

NYCTL 1998-2 Trust v. Bethelite Community Baptist Church, NY Slip Op 06325 (1st Dep't November 10, 2022)

Here is the decision.

Court holiday.

Appellate practice.

The Supreme Court properly characterized the plaintiff's motion, denominated as one to vacate an order, as seeking leave to reargue its opposition to the defendant's prior motion. Because no appeal lies from an order denying reargument, the appeal must be dismissed.

Bank of Am., N.A. v. Davis, NY Slip Op 06226 (2d Dep't November 9, 2022)

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A petition to annul a City agency's determination.

The failure to set forth an adequate statement of the factual basis for the determination forecloses the possibility of fair judicial review and requires that the matter be remanded to the agency.

Matter of Reynolds v. New York City Fire Pension Fund, NY Slip Op 06330 (1st Dep't November 10, 2022)

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The availability of injunctive relief.

Where a plaintiff's substantive claim is dismissed, the cause of action for injunctive relief has no legal basis, and will be dismissed.

300 Wadsworth LLC v. New York State Div. of Hous. & Community Renewal, NY Slip Op 06311 (1st Dep't November 10, 2022)

Here is the decision.

A claim for breach of contact.

The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach.  Here, in support of their motion for summary judgment dismissing the claim, the defendants submitted transcripts of the parties' deposition testimony, which provided differing accounts regarding the existence of an agreement, and emails which had been exchanged between the parties and their attorneys. The defendants' evidence failed to eliminate triable issues of fact as to whether the parties had agreed upon the agreement's major terms and whether the parties began to perform the agreement. As such, they failed to establish, prima facie, that the parties had not reached an agreement. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, their motion is denied wihout considering the sufficiency of the plaintiffs' opposition.

223 Sam, LLC v. 223 15th St., LLC, NY Slip Op 06224 (2d Dep't November 9, 2022)

Here is the decision.

Proper service.

The process server's affidavit established, prima facie, that the defendant was properly served, by three attempts at personal service, followed by "nail and mail" service, pursuant to CPLR 308[4].  In addition, in a stipulation to extend her time to answer, the defendant stated that she had been served with the summons and complaint, and that she would not assert improper service of process or lack of personal jurisdiction as defenses. There is no need for a traverse hearing. 

Lynx Asset Servs., LLC v. Nestor, NY Slip Op 06170 (1st Dep't November 3, 2022)

Here is the decision.

Appellate practice.

Pursuant to CPLR 5701(a)(3), there is an appeal as of right from an order refusing to vacate or modify a prior order if the prior order would have been appealable as of right, pursuant to CPLR 5701(a)(2). Here, the prior order would not have been appealable as of right because it was not a substantive ruling, but merely the denial of defendants' request for an extension of its time to post a bond.

Largo 613 Baltic St. Partners LLC v,  Stern, NY Slip Op 06168 (1st Dep't November 3 , 2022)

Here is the decision.

Appellate practice.

In this action to recover damages for personal injuries, the defendant appeals from an order that granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability. To the extent that the parties raise arguments regarding the remaining branch of the plaintiff's motion which was for summary judgment dismissing the defendant's third affirmative defense, alleging comparative negligence, that branch of the motion was not addressed by the Supreme Court and, therefore, remains pending and undecided.

Zai Guang Chen v. Tak Yung Cheng, NY Slip Op 06159 (2d Dep't November 2, 2022)

Here is the decision.

An action to recover damages for a personal injury.

A general awareness that a dangerous condition might be present is legally insufficient to constitute notice of the particular condition that caused the plaintiff's accident. 

Jiminez v. PR Grand Hotel Owner Co., LLC, NY Slip Op 06167 (1st Dep't November 3, 2022)

Here is the decision.

Prevailing in an Article 78 proceeding.

During the pendency of this proceeding, which was based on a Freedom of Information Law (FOIL) request, the respondents disclosed, with limited redactions, the records that the petitioner sought. The fact that the records were disclosed voluntarily is irrelevant to the issue of whether the petitioner substantially prevailed. Therefore, the petitioner is entitled to attorneys' fees and costs.

Matter of Jaskaran v. City of New York, NY Slip Op 06166 (1st Dep't November 3, 2022)

Here is the decision.

Appellate practice.

It is the appellant's obligation to assemble a proper record on appeal. Here, the appellant did not comply with the Appellate Division's order which directed the submission of a replacement record containing certain materials. The appeal is dismissed, with costs.

Chery v. Simon, NY Slip Op 06104 (2d Dep't November 2, 2022)

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A motion for spoliation sanctions.

A defendant's negligence in failing to maintain records may constitute a culpable state of mind with respect to spoliation.

Domingo v. 541 Operating Corp., NY Slip Op 06162 (1st Dep't November 3, 2022)

Here is the decision.

Appellate practice.

The appeal from the order must be dismissed, as no appeal lies from an order denying reargument.

Castillo v. Charles, NY Slip Op 06103 (2d Dep't November 2, 2022)

Here is the decision.

Court holiday.

Out-of-state notarizations.

In support of its motion for summary judgment, the plaintiff submitted an affidavit that was notarized outside of New York State and that was not accompanied by a certificate in conformity pursuant to CPLR 2309(c). This is not a fatal defect,  as it may be corrected nunc pro tunc, or pursuant to CPLR 2001, which permits trial courts to disregard mistakes, omissions, defects, or irregularities at any time during an action where a substantial right of a party is not prejudiced. 

American Express Natl. Bank v. Hoffman, NY Slip Op 06779 (2d Dep't November 30, 2022)

Here is the decision.

Legal malpractice.

Recovery for legal malpractice is limited to pecuniary damages.

Broomes v. Legal Aid Socy. of N.Y. City, Inc., NY Slip 06101 (2d Dep't Novembee 2, 2022)

Here is the decision.

A motion to vacate a default.

Respondent failed to demonstrate a reasonable excuse for its default, pursuant to CPLR 5015 [a] [1], as it did not submit proof sufficient to support its contention that it was never served with the order to show cause. Petitioner submitted an affidavit of service and documentary evidence establishing that the order to show cause was served by certified mail and delivered to an individual at respondent's address. Respondent did not proffer any evidence controverting this proof of service, but merely submitted self-serving statements. The motion is denied.

Matter of Pizzarotti, LLC v. New York Concrete Washout Sys., Inc., NY Slip Op 06182 (1st Dep't November 3, 2022)

Here is the decision.

Court holiday.

Specific jurisction.

A New York court may exercise specific jurisdiction over a foreign defendant pursuant to CPLR 302, which is New York's long-arm statute. CPLR 302(a)(1) provides that "a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state[.]" This jurisdictional inquiry is twofold: under the first prong the defendant must have conducted sufficient activities to have transacted business in New York, and under the second prong, the claims must arise from the transactions. In order to satisfy the second prong, the statute requires an articulable nexus or substantial relationship between the cause of action sued upon, or an element thereof, and the defendants' business transactions in New York.  The inquiry is relatively permissive, and does not require causation. There must at least be a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former, regardless of the ultimate merits of the claim. Therefore, under CPLR 302(a)(1), jurisdiction is proper even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim pled. Where this necessary relatedness is lacking, the claim as too attenuated  from the transaction, or merely coincidental with it.

Aybar v. US Tires & Wheels of Queens, LLC, NY Slip Op 06099 (2d Dep't November 2, 2022)

Here is the decision.

A motion for jurisdictional discovery.

The motion will be denied in the absence of tangible evidence constituting a "sufficient start" to a showing that jurisdiction could exist against the defendant. 

Taxi Tours Inc. v. Go N.Y. Tours, Inc., NY Slip Op 06186 (1st Dep't November 3, 2022)

Here is the decision.

Appellate practice.

In this action arising from an auto accident, the defendant-driver and owner ask the Appellate Division to search the record and grant them summary judgment. However, they failed to raise this issue or seek this relief before the motion court, and the Appellate Division declines to grant that relief.

Betances v. DJB Intl. Ltd, NY Slip Op 06160 (1st Dep't November 3, 2022)

Here is the decision.

Collateral estoppel.

Collateral estoppel, otherwise known as issue preclusion, 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 regardless of whether the court or the causes of action are the same. The party invoking estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, and the party seeking to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action.

9th St., LLC v. Deutsche Bank Natl. Trust Co., NY Slip Op 06097 (2d Dep't November 2, 2022)

Here is the decision.

The limitations period in a mortgage foreclosure action.

The statute of limitations began to run on November 20, 2009, upon the prior mortgagee's commencement of the initial foreclosure action and acceleration of the loan. However, plaintiff, who is the assignee of the mortgage, clearly and validly revoked the acceleration of the loan on November 19, 2015, when it sent a letter informing the mortgagor that the loan was "hereby de-accelerated" and that "immediate payment of all sums owed is hereby withdrawn and the Loan is re-instituted as an installment loan." As the action was commenced within six years of the de-acceleration of the loan, the action  is timely, pursuant to CPLR 213(4). The affirmative defense is dismissed.

21st Mtge. Corp. v. Jin Lin, NY Slip Op 06076 (1st Dep't November 1, 2022)

Here is the decision.

Waiver of a jurisdictional objection.

An objection that the summons and complaint was not properly served is waived if, after raising the objection in a pleading, the defendant does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship, pursuant to CPLR 3211[e].

Bank of N.Y. Mellon v. Shurko, NY Slip Op 05975 (2d Dep't October 26, 2022)

Here is the decision.

An action to quiet title.

In order to obtain summary judgment in an action to quiet title pursuant to RPAPL article 15, the movant must establish, prima facie, that it holds title, or that the nonmovant's title claim is without merit.

702 DeKalb Residence, LLC v. SSLiberty, Inc., NY Slip Op 05971 (2d Dep't October 26, 2022)

Here is the decision.