Appellate practice.

A party cannot raise an argument on appeal where it had defaulted on the motion at issue, thereby failing to raise that argument below.

Hamilton v. 208-214 E. 25h St., LLC, NY Slip Op 06594 (1st Dep't December 21, 2023)

Here is the decision.

Vacating a note of issue.

A motion to vacate the note of issue more than 20 days after it was filed requires a showing of good cause for the delay, or of substantial prejudice to the movant because of unusual or unanticipated circumstances subsequent to the filing, under 22 NYCRR 202.21 [d], [e].  A lack of due diligence in seeking discovery does not constitute an unusual or unanticipated circumstance.

Peterson v. City of New York, NY Slip Op 06601 (1st Dep't December 21, 2023)

Here is the decision.

Venue.

Defendant's motion to change venue is denied. Pursuant to CPLR 510 [1], Defendant met its threshold burden of raising an issue as to plaintiff's residence by annexing documents indicating that plaintiff was a Connecticut resident. However, in opposition, plaintiff, through his detailed affidavit and corroborating documents, sufficiently established his bona fide residency,with some degree of permanency, in Bronx County.

Vaccaro v. Mercedes-Benz USA, NY Slip Op 06603 (1st Dep't December 21, 2023)

Here is the decision.

Summary judgment.

Summary judgment may be awarded on an unpleaded cause of action if the proof supports the cause of action  and if the opposing party has not been misled to its prejudice.

Castillo v. Hawke Enters., LLC, NY Slip Op 06505 (2d Dep't December 20, 2023)

Here is the decision.

Leave to renew.

CPLR 2221(e)(2) and (3) provides, in relevant part, that "[a] motion for leave to renew . . . shall be based upon new facts not offered on the prior motion that would change the prior determination . . . [and] shall contain reasonable justification for the failure to present such facts on the prior motion." The requirement of new or additional facts that were unknown to the movant is a flexible one and the court, in its discretion, may grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made. In this slip-and-fall action, the plaintiff established a reasonable justification for her failure to provide the video recording of the condition of the floor in her opposition to the defendant's summary judgment motion. Renewal is granted.

Blackman v. Red Lobster Hospitality, LLC, NY Slip Op 06504 (2d Dep't December 20, 2023)

Here is the decision.

Defaults.

In the absence of an already existing default order or judgment, an affidavit of merit is not necessary when opposing a plaintiff's motion for a default judgment or in seeking to compel a plaintiff to accept the defendant's late answer.

Watts v. Garcia, NY Slip Op 06604 (1st Dep't December 21, 2023)

Here is the decision.

Employment discrimination under New York's Human Rights Laws.

A plaintiff alleging employment discrimination in violation of the State statute must establish (1) membership in a protected class; (2)  qualification to hold the position; and (3) an adverse employment acttion, taken (4) under circumstances giving rise to an inference of discrimination.  Under the City statute, the plaintiff must establish that, on the basis of a protected characteristic, he was subject to an unfavorable employment change or treated less well than other employees. Under both the State and City statutes, the action must be commenced within three years of the alleged unlawful discriminatory practice or act of discriminatory harassment.

Acala v. Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., NY Slip Op 06345 (2d Dep't December 13, 2023)

Here is the decision.

Motions to consolidate.

Consolidation serves the interest of judicial economy and the prevention of inconsistent determinations based on the same facts, pursuant to CPLR 602[a]. The motion will be granted where the two actions arise out of the same underlying occurrence, and they have common questions of law and significantly overlapping facts. Opposition to the motion requires a showing that consolidation would prejudice a substantial right

Steele v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 06498 (1st Dep't December 19, 2023)

Here is the decision.

Summary judgment.

Plaintiff's expert relied on plaintiff's testimony as the basis for his opinion rather than relying on his own observations. Therefore,  his opinion is speculative and fails to raise a question of fact sufficient to defeat defendant's motion.

Williams v. Plaxall Realty Sub, LLC, NY Slip Op 06463 (1st Dep't December 14, 2023)

Here is the decision.

Prima facie tort.

In order to state a cause of action to recover damages for prima facie tort, the plaintiff must allege: (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or a series of acts which would otherwise be lawful. The complaint must plead the defendant's malicious intent or disinterested malevolence as the sole motive for the challenged conduct.

Banschick v. Johnson, NY Slip Op 06231 (2d Dep't December 6, 2023)

Here is the decision.

Notices to admit.

CPLR 3123(a) authorizes the service of a notice to admit upon a party, and provides that if a timely response thereto is not served, the contents of the notice are deemed admitted. However, the only purpose of the notice is to eliminate from contention those matters which are not in dispute in the litigation and which may be readily disposed of. The notice may not be used to obtain information in lieu of other disclosure devices, or to compel admissions of fundamental and material issues or contested ultimate facts.

American Bldrs. & Contrs. Supply Co., Inc. v. Vinyl is Final, Inc., NY Slip Op 06346 (2d Dep't December 13, 2023)

Here is the decision.

Statutes of limitations.

An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Even if a 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.

Anglestone Real Estate Venture Partners Corp. v. Bank of N.Y. Mellon, NY Slip Op 06109 (2d Dep't November 29, 2023)

Here is the decision.

Easements.

An easement is not a personal right of the landowner but is an appurtenance to the land benefitted by it, and a grant of the land carries with it the grant of the easement. There is an easement appurtenant when the easement is created in writing, subscribed by the creator, and burdens the servient estate for the benefit of the dominant estate. However, the rule in New York is that a deed with a reservation or exception by the grantor in favor of a third party, a so-called stranger to the deed, does not create a valid interest in favor of that third party. Therefore, in order for an easement by grant to be effective, the dominant and servient properties must have a common grantor.

Daniello v. Wagner, NY Slip Op 06116 (2d Dep't November 29, 2023)

Here is the decision.

Account stated.

An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due. An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account.

D & N Lending, LLC v. Tachlis Corp., NY Slip Op 06115 (2d Dep't November 29, 2023)

Here is the decision.

Appellate practice.

No appeal lies from the denial of reargument. Here, the appellant's motion, though denominated as one for leave to renew and reargue, was, in actuality, one for leave to reargue, the denial of which is not appealable. The appeal is dismissed, with costs.

Constable v. Staten Is. Univ. Hosp., NY Slip Op 06114 (2d Dep't November 29, 2023)

Here is the decision.

Labor Law.

Labor Law § 200 codifies an owner's or general contractor's common-law duty of care to provide construction site workers with a safe place to work. Claims under this section may arise from an alleged defect or dangerous condition on the premises, or from the manner in which the work was performed.  Where the defendant is not an owner or general contractor, there can be no liability under Labor Law § 200.

Tisselin v. Memorial Hosp. for Cancer & Allied Diseases, NY Slip Op 06210 (1st Dep't November 30, 2023)

Here is the decision.

Condominium boards.

The board is responsible for running the day-to-day affairs of the condominium, and, to that end, may have broad powers regarding financial decision-making and promulgating regulations. Where the board's disputed decision is based on a governing document which provides that consent shall not be unreasonably withheld, the heightened standard of reasonableness is applied in lieu of the usual business judgment rule. This standard of reasonableness hinges on whether the board's decision is legitimately related to the welfare of the condominium.

Wong v Board of Mgrs. of the 45 W. 67th St. Condominium, NY Slip Op 06211 (1st Dep't November 30, 2023)

Here is the decision.

Appellate practice.

An order is not appealable as of right where the order did not decide a motion made on notice, pursuant to CPLR 5701[a][2]. However, the Appellate Division may deems the notice of appeal to be a motion for leave to appeal, and it may grant such leave.

Junmei Zhang v. City of New York, NY Slip Op 06325 (1st Dep't December 7, 2023)

Here is the decision.

Appellate practice.

The Supreme Court properly treated the defendant's motion, denominated as one for leave to renew and reargue its motion for summary judgment, as one for leave to reargue the motion. As the denial of a motion for leave to reargue is not appealable, the appeal from the order must be dismissed.

Brilliantine v. East Hampton Fuel Oil Corp., NY Slip Op 06112 (2d Dep't November 29, 2023)

Here is the decision.

Rear-end collisions.

It is well-settled that a rear-end collision with a slowing or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the the trailing vehicle.  A defendant's claim that the lead vehicle made a sudden stop, without more, is insufficient to rebut the presumption of negligence.

Here, plaintiff met the prima facie burden of establishing his entitlement to summary judgment on the issue of liability by submitting an affidavit stating that when he braked because of the 15 miles per hour speed limit imposed in a construction area, defendant's car collided with the rear of his vehicle.

In opposition, defendant failed to provide a non-negligent explanation for the accident. Defendant failed to establish that she maintained a safe following distance, pursuant to Vehicle and Traffic Law § 1129[a], and that plaintiff's repeated braking was not foreseeable given the speed limitation in the construction zone.

Plaintiff's motion was not premature, pursuant to CPLR 3212[f]. His affidavit established that a rear-end collision occurred, and defendant was in a position to proffer sufficient relevant information concerning the circumstances of the accident.

Ahmad v. Behal, NY Slip Op 06196 (1st Dep't November 30, 2023)

Here is the decision.

Summary judgment.

Successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause.  Evidence is not newly discovered simply because it was not submitted on the previous motion. Instead, the evidence that was not submitted must be used to establish facts that were not available to the party at the time it made its initial motion and which could not have been established through alternative evidentiary means.

Here, the defendant failed to establish that the evidence submitted in support of its second motion for summary judgment dismissing the plaintiffs' claims for damages relating to the diminution in value of certain real property and of certain artwork, purportedly demonstrating that the plaintiffs did not sustain any damages as a result of an oil spill, was not available to it, and could not have been submitted, on its prior motion.

In any event, the conflicting experts' opinions submitted by the parties raise issues of fact which preclude summary judgment.

Defendant's motion is denied.

Brilliantine v. East Hampton Fuel Oil Corp., NY Slip 06111 (2d Dep't November 29, 2023) 

Here is the decision.

Contract law.

A stipulation of settlement that is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation.  In interpreting a stipulation of settlement, the court should arrive at a construction that will give fair meaning to all of the language employed by the parties in order to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.  A court may not rewrite an agreement by adding or excising terms under the guise of construction, and it may not construe the language in such a way as would distort the contract's apparent meaning. Neither can a court cannot reform an agreement so as to conform to what it thinks is proper, if the parties have not assented to such a reformation.

Anderson v. Anderson, NY Slip Op 06108 (2d Dep't November 29, 2023)

Here is the decision.

1941.

Contract law.

The basic principles of contract interpretation apply to by-laws and offering plans. The relevant provisions of related documents must be read together, and where the language of the instrument at issue is unambiguous, it will be upheld and enforced according to the plain meaning of its terms.

Mazumdar v. Board of Mgrs. of Striver Gardens Condominium, NY Slip Op 05988 (1st Dep't November 21, 2023)

Here is the decision.

Premises liability.

In a premises liability case, the defendant-property owner, or a party in possession or control of the property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of it. A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected. In order to meet its initial burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the accident site was last cleaned or inspected prior to the accident.

Cosme v. New York City Dept. of Educ., NY Slip Op 06026 (2d Dep't November 22, 2023)

Here is the decision.

Common-law indemnification.

The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party. Evidence of a party's authority to supervise or direct work, without more, is insufficient to impose liability upon that party under a theory of common-law indemnification.

Chapa v. Bayles Props., Inc., NY Slip Op 06025 (2d Dep't November 22, 2023)

Here is the decision.

Appellate practice.

Defendants' arguments as to why a mistrial should have been declared as to the jury's liability and compensatory damages determinations are not properly before the Appellate Division. In their motion papers before Supreme Court, defendants expressly limited their motion to events and issues that arose after the first phase of the trial had concluded. However, defendants' brief on appeal focus on matters that either arose during the trial or have been addressed in motion practice that also is not at issue on this appeal.

Rosenthal v. Sperling, NY Slip Op 05996 (1st Dep't November 21, 2023)

Here is the decision.

Failure to oppose a motion.

A party seeking to vacate a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion. The excuse of law office failure may be deemed reasonable. 

V.C. v. Fly High Indoor Trampoline Park, Inc., NY Slip Op 06024 (2d Dep't November 22, 2023)

Here is the decision.

Motions to dismiss.

A pre-answer motion to dismiss may properly be denied where "facts essential to justify opposition may exist but cannot then be stated," pursuant to CPLR 3211 [d].

Ark 357 Doe v. Jesuit Fathers and Bros., NY Slip Op 05975 (1st Dep't November 21, 2023)

Here is the decision.

Summary judgment as to liability.

A plaintiff in a negligence action 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 is not required to show freedom from comparative negligence in order to establish his prima facie entitlement to judgment as a matter of law.  However, the issue of the plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.

Bornsztjen v. Zito, NY Slip Op 05706 (2d Dep't November 15, 2023)

Here is the decision.

Attorneys' fees.

The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court. In exercising its discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings or engaged in unnecessary litigation.

Blocker v. Blocker, NY Slip Op 05705 (2d Dep't November 15, 2023)

Here is the decision.

Summary judgment.

In this toxic tort action, defendant's summary judgment motion is denied because the parties' competing causation evidence constitutes a battle of the experts.

Sason v. Dykes Lbr. Co., Inc., NY Slip Op 05796 (1st Dep't November 16, 2023)

Here is the decision.

Leave to renew.

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination," pursuant to CPLR 2221[e][2].

Andil v. Wakefern Food Corp., NY Slip Op 05582 (2d Dep't November 8, 2023)

Here is the decision.

Contract law.

Because the dismissal of the contract claims was proper, the motion court also properly dismissed the claims for breach of the alleged implied covenants of good faith and fair dealing. 

2 Girls Accys LLC v. Larrea, NY Slip Op 05782 (1st Dep't November 16, 2023)

Here is the decision.

Medical malprctice.

In order to establish a physician's liability for medical malpractice, a plaintiff must prove that the physician departed from accepted community standards of practice, and that the departure was a proximate cause of the plaintiff's injuries. However, in order to reach the issue of departure from accepted medical practice, it is necessary first to establish the existence of a duty. While physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient. The existence and scope of a physician's duty of care is a question of law to be decided by the court.

Abruzzi v. Maller, NY Slip Op 05704 (2d Dep't November 15, 2023)

Here is the decision.

The relation-back doctrine.

In deciding a motion for leave to serve an amended complaint, the court may properly apply the relation-back doctrine if the original verified complaint put the defendant on notice of the underlying transactions,  pursuant to CPLR 203[f]. 

Spruill v. City of New York, NY Slip Op 05701 (1st Dep't November 14, 2023)

Here is the decision.

Court holiday.

Personal jurisdiction.

In this action, plaintiff seeks to foreclose on its lien on defendant's condominium and to recover unpaid common charges. By appearing in the action, litigating the merits of her disputes with plaintiff, and seeking affirmative relief in the form of a motion to compel production of plaintiff's annual reports, defendant conferred personal jurisdiction on the court. 

Board of Mgrs. of the Residential Section of Galleria Condominium v. Hong, NY Slip Op 05655 (1st Dep't November 9, 2023)

Here is the decision.

Res judicata and collateral estoppel.

The complaint seeking to set aside an arbitration award is barred on the basis of res judicata and collateral estoppel. On plaintiff's previous appeal, in which he sought the same relief, the Appellate Division rejected the same argument that he makes in this action, namely, that the award is invalid and must be set aside under CPLR article 75 because the arbitration proceeding was improper and because the arbitrator's findings were unsupported by the record and were arbitrary and capricious. The fact that plaintiff has pleaded different causes of action and included new parties is of no consequence. Although the parties in both actions are not identical, plaintiff, the party against whom preclusion is sought, was a party in the earlier action. In addition, the current claims are based on the same transaction as in the earlier action, and, therefore, are barred, even though they are based upon different theories. 

Dowlah v. American Arbitration Assn., NY Slip Op 05658 (1st Dep't November 9, 2023)

Here is the decision.

Legal malpractice.

In order to state a cause of action to recover damages for legal malpractice, the plaintiff must allege (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages. 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. A malpractice claim is viable where the underlying action is settled if the plaintiff alleges that settlement was effectively compelled by the mistakes of counsel. 

Alexim Holdings, LLC v. McAuliffe, NY Slip Op 05581 (2d Dep't November 8 2023)

Here is the decision.

Trip-and-fall cases.

Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his fall without engaging in speculation.  A plaintiff's inability to identify the cause of his fall is fatal to a cause of action to recover damages for personal injuries because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

The plaintiff's inability to testify as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence. Cases grounded on circumstantial evidence require a showing of sufficient facts from which the defendant's negligence and the causation of the accident by that negligence can be reasonably inferred. However, where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused the accident, any determination by the trier of fact as to causation would be based upon sheer speculation.

Adzei v. Edward Bldrs., Inc., NY Slip Op 05580 (2d Dep't November 8, 2023)

Here is the deciion.

Discovery.

CPLR 3101(a) directs that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The right to disclosure, although broad, is not unlimited. The statute establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery; attorney's work product, also absolutely immune; and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship. A party asserting that material is privileged bears the burden of demonstrating that the material it seeks to withhold is immune from discovery. Whether a particular document is protected is necessarily a fact-specific determination, most often requiring in camera review.

Here, the Appellate Division remits the matter to the Supreme Court for an camera review of the documents requested in the subpoena before it determines whether to compel compliance with the subpoena or to grant a protective order.  

Bronstein v. Omega Constr. Group, Inc., NY Slip Op 05487 (2d Dep't November 1, 2023)

Here is the decision.

Vacating a default.

In order to vacate her default in opposing those branches of the defendants' separate motions which were pursuant to CPLR 3126 to strike the amended complaint, the plaintiff was required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition, pursuant to CPLR 5015[a][1]. While the plaintiff demonstrated a reasonable excuse for the default, she failed to demonstrate a potentially meritorious opposition. Instead, the willful and contumacious nature of the plaintiff's conduct can be inferred from her failure, over a period of years, to comply with the defendants' discovery demands and her failure to comply with court orders directing disclosure. Vacatur is denied.

S.A. v. Bucca, NY Slip Op 05485 (2d Dep't November 1, 2023)

Here is the decision.

Examinations before trial.

Courts have the inherent authority to strike the complaint and dismiss the action where the plaintiff refuses to answer questions posed at an examination before trial on grounds of the privilege against self-incrimination. On the appeal of a dismissal made pursuant to this inherent power, the only inquiry is whether the questions that the plaintiff refused to answer were material and necessary to the defendant's defense, pursuant to CPLR 3101.

Small v. DMRG Group LLC, NY Slip Op 05551 (1st Dep't November 2, 2023)

Here is the decision.

Piercing the corporate veil.

In order to survive a motion to dismiss the complaint, a plaintiff seeking to pierce the corporate veil must allege facts that, if proved, establish that the party against whom the doctrine is asserted exercised complete domination over the corporation with respect to the transaction at issue, and, through its domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff. The claim is brought in equity. Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate or LLC form include the failure to adhere to corporate or LLC formalities, inadequate capitalization, commingling of assets, and the personal use of corporate or LLC funds.

Archival, Inc. v. 177 Realty Corp., NY Slip Op 05386 (2d Dep't October 25, 2023)

Here is the decision.

Judiciary Law § 487.

Defendant is an attorney who represented plaintiff's former husband in the matrimonial action underlying this action. During the course of the matrimonial proceedings, defendant knowingly failed to inform the court that, in accordance with neglect and custody proceedings held in Kings County Family Court, plaintiff had been awarded primary physical custody of the child of the marriage. Defendant also prepared an affidavit for his client, falsely stating that the client had never been party to a neglect proceeding and asserting that the client was the child's custodial parent. In addition, defendant submitted a final judgment of divorce awarding primary physical custody of the child to his client on the basis of stipulated agreements between plaintiff and the client even though those agreements had been signed three years before the Kings County proceedings. Defendant then presented an order to show cause to hold plaintiff in contempt of court for not complying with the custody provisions in the judgment of divorce.

Plaintiff established her entitlement to summary judgment by submitting evidence that defendant had intentionally failed to apprise the court of the Kings County custody order, thus affirmatively misrepresenting the existence of adverse information relevant to the proceedings. This evidence was sufficient to establish "egregious conduct" under the statute. Despite defendant's position otherwise, a plaintiff need not demonstrate a chronic pattern of delinquency to recover on a Judiciary Law § 487 action; on the contrary, a single egregious act, such as the one presented here, is sufficient.

Suzuki v. Greenberg, NY Slip Op 05455 (1st Dep't October 26, 2023)

Here is the decision.

Appellate practice.

An argument that is not raised before Supreme Court is not preserved for appellate review.

35th St. Assoc. v. Sasson, NY Slip Op 05353 (1st Dep't October 24, 2023)

Here is the decision.

Court holiday.

Settlement agreements.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell at premises owned by the defendant. The defendant moved pursuant to CPLR 2104 to enforce a purported settlement agreement between the parties, contending that the parties had reached a settlement that was memorialized in an email message. The Supreme Court denied the defendant's motion, determining that "there was no meeting of the minds or the creation of a settlement that is legally enforceable." The defendant appealed.

Pursuant to CPLR 2104, a settlement agreement is binding upon a party if it is in a writing subscribed either by the party or by the party's attorney. In order to be enforceable, the agreement must set forth all material terms, and there must be clear mutual accord between the parties.  An email that merely confirms a purported settlement is not necessarily sufficient to bring the purported settlement into the scope of CPLR 2104.

Here, the email purportedly confirming the agreement stated that it was memorializing the "tentative resolution" of the case, and it was sent by counsel for the defendant, which is the party seeking to enforce the agreement. There is no confirming email subscribed by the plaintiff or the attorney for the plaintiff, who is the party to be charged.

The order is affirmed, with costs.

Vlastakis v. Mannix Family Mkt. @ Veteran's Rd., LLC, NY Slip Op 05287 (2d Dep't October 18, 2023)

Here is the decision.

Contract law.

In New York, all contracts imply a covenant of good faith and fair dealing,  which, broadly stated, constitutes a pledge that neither party will do anything which will have the effect of destroying or injuring the other party's right to receive the fruits of the contract. The covenant requires the parties to perform under the contract in a reasonable way.

Mahope Family L.P. v. Avgush, NY Slip Op 05253 (2d Dep't October 18, 2023)

Here is the decision.

Court holiday.

Contract law.

An oral agreement cannot survive the subsequent execution of a written agreement which contains a merger clause.

IBT Media Inc. v. Pragad, NY Slip Op 05315 (1st Dep't October 19, 2023)

Here is the decision.

Appellate practice.

An issue that is raised for the first time in the appellant's reply brief is not properly before the Appellate Division.

513 W. 26th Realty LLC v. George Billis Galleries, Inc., NY Slip Op 05308 (1st Dep't October 19, 2023)

Here is the decision.

The advocate-witness rule.

The disqualification of an attorney is a matter which rests within the sound discretion of the trial court. A party's entitlement to be represented in ongoing litigation by counsel of its own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion.  A party moving to disqualify counsel on the ground that he may be called as a witness must demonstrate that (1) the testimony of the opposing party's counsel is necessary to its case, and (2) the testimony would be prejudicial to the opposing party. Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence.

Gamez v. Lopez, NY Slip Op 05250 (2d Dep't October 18, 2023)

Here is the decision.

Appellate practice.

Although landlord purports to appeal from Supreme Court's denial of its motion to dismiss the affirmative defense of tenant harassment, it offers no argument in support of its position on this issue. Therefore, it has abandoned its appeal on this issue.

Westman Realty Co., LLC v. Nettles, NY Slip Op 05346 (1st Dep't October 19, 2023)

Here is the decision.

Premises liability.

In order to be entitled to summary judgment in a premises liability case, the defendant is required to show, prima facie, that it maintained its premises in a reasonably safe condition and that it did not have notice of or create a dangerous condition that posed a foreseeable risk of injury to persons expected to be on the premises. Whether there is a dangerous or defective condition so as to create liability depends on the peculiar facts and circumstances of each case and generally is a question of fact for the jury.

De La Cruz v. NJE Enters., Inc., NY Slip Op 05247 (2d Dep't October 18, 2023)

Here is the decision.

Entry of judgment.

CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] 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." In order to show sufficient cause, the plaintiff is required to demonstrate that it had a reasonable excuse for the delay and that it has a potentially meritorious action. Where the action is subject to a mandatory settlement conference, pursuant to CPLR 3408, the one-year deadline imposed by CPLR 3215(c) is tolled. 

Citimortgage, Inc. v. Kimmerling, NY Slip Op 05246 (2d Dep't October 18, 2023)

Here is the decision.

Powers of attorney.

Unless the power of attorney document expressly authorizes gifts, an attorney-in-fact, in exercising his fiduciary responsibilities to the principal, may not make a gift to himself or to a third-party of the money or property which is the subject of the agency relationship. Such a gift carries with it a presumption of impropriety and self-dealing, and the presumption can be overcome only with the clearest showing of the principal's intention to make the gift. Any gifts of the principal's assets must be in the best interest of the principal.

Choudhari v. Choudhari, NY Slip Op 05245 (2d Dep't October 18, 2023)

Here is the decision.

Appellate practice.

The Appellate Division declines to reach the arguments of defendants New York City Transit Authority and Metropolitan Transit Authority regarding their cross-motion pursuant to CPLR 3211(a) to dismiss the complaint as asserted against them. The cross-motion was not addressed in the order appealed from and, therefore, remains pending and undecided. The appeal is dismissed.

Braithwaite v. City of New York, NY Slip Op 05244 (2d Dep't October 18, 2023)

Here is the decision.

Medical malpractice.

The elements of a medical malpractice cause of action are a departure from accepted community standards of practice, and that the departure was a proximate cause of the plaintiff's injuries. On a motion for summary judgment, the defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that, if there were a departure, the plaintiff was not injured thereby. If the defendant meets its burden, the plaintiff, in opposition, must submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden.

Blank v. Adiyody, NY Slip Op 05243 (2d Dep't October 18, 2023)

Here is the decision.

Motions to Dismiss.

A party may move for judgment dismissing one or more causes of action asserted against it on the ground that the cause of action may not be maintained because of the statute of limitations, pursuant to CPLR 3211(a)(5). The moving defendant must establish, prima facie, that the time in which to commence the action has expired. If the defendant makes the requisite showing, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period.

Bank of N.Y. Mellon v. DeMatteis, NY Slip Op (2d Dep't October 18, 2023)

Here is the decision.

Motions to dismiss.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

5 Star Holdings NY, LLC v. Kohl's Dept. Store, Inc.,  NY Slip Op 05240 (2d Dep't October 18, 2023)

Here is the decision.

The doctrine of res ipsa loquitur.

Res ipsa loquitur is not a separate theory of liability but merely a common-sense application of the probative value of circumstantial evidence. The doctrine permits an inference of negligence, but does not prove it. 

Lowman v. Consolidated Edison of N.Y., Inc., NY Slip Op 05226 (1st Dep't October 17, 2023)

Here is the decision.

Labor Law claims.

Plaintiff sustained injuries while working at a construction site where defendants were constructing a two-family home. The Labor Law §§ 240(1) and 241(6) claims as against defendants were dismissed, as defendants fell within the homeowner's exemption set forth in the statutes, which exempts from liability "owners of one and two-family dwellings who contract for but do not direct or control the work." Defendants made a prima facie showing of their entitlement to the exemption by demonstrating that they intended to reside in one of the units, and, therefore, that the property was not to be used solely for commercial purposes, and that they did not direct or control plaintiff's work. Plaintiff failed to raise a triable issue of fact in opposition.

In the absence of evidence that defendants exercised supervisory control over the injury-producing work, the Labor Law § 200 and common-law negligence claims were also dismissed.

Nava v. Franklin, NY Slip Op 05191 (1st Dep't October 12, 2023)

Here is the decision.

Slips and falls.

Defendant is not entitled to dismissal of the complaint on the basis that the alleged defect on the sidewalk abutting its property was not the cause of plaintiff's fall. Plaintiff consistently and unequivocally testified that she tripped on an uneven sidewalk abutting 1577 Third Avenue and that she immediately realized that a raised sidewalk flag extending about an inch above its adjoining flag had caused her fall. At her deposition, plaintiff pinpointed the alleged defect by indicating its location in photographs of the sidewalk, which depicted a raised sidewalk flag.

Defendant also is not entitled to summary judgment on the basis that the alleged defect was trivial. In light of plaintiff's testimony, photos of the accident location, and the conflicting expert affidavits on the height differential of the sidewalk flags, there are triable issues of fact as to whether the defect was trivial. In particular, while defendant's expert testified that the height difference between the two sidewalk flags was one quarter of an inch and was trivial, plaintiff's expert concluded that the height difference was three quarters of an inch and presented a tripping hazard. Moreover, defendant waived any objection to plaintiff's expert's affidavit as untimely or speculative by not objecting to its being considered on the motion.

Shapiro v. 89th St. Dev. Co. LLC, NY 05211 (1st Dep't October 12, 2023)

Here is the decision.

Service of process.

Service must be made in strict compliance with the statutory methods for effecting personal service upon a natural person' pursuant to CPLR 308, Here, the plaintiff purportedly served the defendant by the affix and mail method of CPLR 308(4). Service pursuant to CPLR 308(4) may be used only where service pursuant to CPLR 308(1) or (2) cannot be made with due diligence. The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received.

Here, according to his affidavit of service, the process server made prior attempts at personal delivery of the summons and complaint at the defendant's residence at different times of the day between Thursday, December 21, 2017 and Friday, December 29, 2017. Although one of those times was on December 23, 2017, a Saturday, the attempts at service occurred at the height of the holiday season, when the defendant may have had reasons not to be home. The process server noted that holiday lights were on in the windows of the residence on December 23, and that both. floors of the residence were illuminated on December 26. Nevertheless, considering the holiday season, the process server's observations were not a sufficient basis to believe that the defendant was evading service. Moreover, the process server stated that he was unable to speak to a neighbor regarding the defendant's whereabouts.

In addition, in the year prior to the commencement of this action, in applying for a loan modification, the defendant was required to disclose his employer and address of employment to the plaintiff. The plaintiff did not try to serve the defendant at his place of employment. The plaintiff failed to demonstrate that the process server acted with due diligence before resorting to affix and mail service pursuant to CPLR 308(4).

Bank of America, N.A. v. Fischer, NY Slip Op 05112 (2d Dep't October 11, 2023)

Here is the decision.

Indemnification.

In order to establish a claim for common-law indemnification, a party must prove that it was not negligent and that the proposed indemnitor was responsible for negligence that contributed to the accident. 

Balanta v. Guo Lin Wu, NY Slip Op 05111 (2d Dep't October 11, 2023)

Here is the decision.

Appellate practice.

The Appellate Division may consider a legal argument that was not raised before the trial court if it appears on the face of the record and could not have been avoided if it had been raised.

Wagman v. Morgan Stanley Children's Hosp. of N.Y. Presbyt., NY Slip Op 05214 (1st Dep't October 12, 2023)

Here is the decision.

Objecting to service of process.

The Appellate Division affirmed the Supreme Court's determination that the defendant waived any challenge to service because he actively participated in the litigation by formally appearing, addressing the merits of the petition, and raising objections about service upon another party before raising an issue about service upon himself. The Appellate Division noted that, as per an affirmation of service, relevant papers were served by email after the defendant, an attorney, consented to service by email.

Matter of Montal v. Koplen, NY Slip Op 05165 (2d Dep't October 11, 2023)

Here is the decision.

Vacating a default.

In order to vacate a default judgment, the movant must establish both a reasonable excuse for its default and a meritorious defense to the plaintiff's claims. A corporate defendant's failure to update the aaddress of its agent for service of process is not a reasonable excuse for defaulting. In the absence of a reasonable excuse, the issue of the defendant's defenses will not be addressed.

Shabtai v. HFZ Capital Group, LLC, NY Slip Op 05109 (1st Dep't October 10, 2023)

Here is the decision.

Appellate practice.

Respondent failed to oppose, or even address, the appeal of the denial of appellant's motion for an extension of time to move for summary judgment. Therefore, respondent concedes that point and the Appellate Division reverses that portion of the court's order, provided that appellant serves its motion for summary judgment within 60 days.

IO Experience Design LLC v. C & A Mktg. Inc., NY Slip Op 05038 (1st Dep't October 5, 2023)

Here is the decision.

Discovery.

CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." However, a party is not entitled to unlimited, uncontrolled, and unfettered disclosure. Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order striking a notice for discovery and inspection that is palpably improper. The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court.

Here, the Appellate Division determined that the Supreme Court providently exercised its discretion in directing the defendant to produce repair-related records for the stairway on which accident occurred and a list of all employees and contractors that worked on the stairway for two years before the accident. The plaintiffs demonstrated that those documents were material and necessary to the prosecution of the action, and the defendant failed to demonstrate that a protective order was warranted with respect to those documents.

However, the Supreme Court erred in directing the defendant to disclose records for one year after the accident. Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case. There is an exception to this rule if the defendant's maintenance of, or control over, the accident's instrumentality is at issue. Here, there is no issue as to the maintenance and control of the stairway.

C.B. v. New York City Tr. Auth., NY Slip Op 04650 (2d Dep't September 20, 2023)

Here is the decision.

A claim for tortious interference with contract.

In order to plead the cause of action, a plaintiff must allege (1) the existence of a valid contract; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procuring of the breach of the contract; and (4) damages. The complaint will be dismissed where the plaintiff fails to sufficiently allege that, but for the defendant's conduct, the contract would not have been breached. 

111 W. 57th Inv. LLC v. 111 W57 Mezz Inv. LLC, NY Slip Op 05029 (1st Dep't October 5, 2023)

Here is the decision.

The duty of loyalty.

The duty of loyalty is grounded in the faithless servant doctrine. The duty is breached where the employee, acting as the employer's agent, unfairly competes with his employer and diverts business opportunities to himself or others to the employer's financial detriment. Here, defendant does not dispute that he referred a matter to another law firm without plaintiff's knowledge or consent and collected more than $140,000 in referral fees. A for-profit referral, without plaintiff's knowledge or consent, violates defendant's duty of loyalty and, at a minimum, entitles plaintiff to the referral fee.

Barasch & McGarry, PC v. Marcowitz, NY Slip Op 04815 (1st Dep't September 28, 2023)

Here is the decision.

Notices of claim.

Plaintiffs seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim, pursuant to General Municipal Law § 50-e. The notice must set forth the nature of the claim and the time when, the place where, and the manner in which the claim arose. The test of the sufficiency of the notice is whether it includes information sufficient to enable the public entity to pinpoint the place, fix the time, and understand the nature of the accident at issue. Claims of roadway, sidewalk, or similar defects must be set forth with great specificity because of their transitory nature. A court deciding a motion to dismiss a complaint on the ground that the notice is insufficient may consider the testimony provided during an examination pursuant to General Municipal Law § 50-h, as well as any other evidence properly before the court.

A.A. v. City of New York, NY Slip Op 04744 (2d Dep't September 27, 2023)

Here is the decision.

Motions for summary judgment in lieu of complaint.

Plaintiff demonstrated its entitlement to relief under CPLR 3213 when it established the existence of the guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty. There is no need to consider the underlying transactions that resulted in the promissory note because the note states that it supersedes all prior agreements between the parties and expressly references defendant's unconditional guaranty, executed the same day, which waived all defenses, including those raised here.

Varadero Master Fund, L.P. v. Gomez, NY Slip Op 04742 (1st Dep't September 26, 2023)

Here is the decision.

Foreclosure after bankruptcy.

The Supreme Court ordered a referee to conduct a foreclosure sale of certain real property owned by the defendant. One week before the foreclosure sale, the defendant filed a bankruptcy petition. The Bankruptcy Court granted the defendant a discharge, issued a final decree that the defendant's estate had been fully administered, and closed the bankruptcy case.

The plaintiff moved for an extension of time to conduct the foreclosure sale. Pursuant to CPLR 3211(a)(5), the defendant moved  to dismiss the complaint on the ground of discharge in bankruptcy.  After the Supreme Court granted the plaintiff's motion and denied the defendant's motion, the defendant appealed.

The Appellate Division determined that the defendant's motion to dismiss was properly denied. A party may move to dismiss on the ground that the cause of action may not be maintained because of a discharge in bankruptcy.  However, the defendant waived this defense by failing to timely raise it, pursuant to 3211[e]. The Appellate Division noted that, in any event, a creditor's right to foreclose on a mortgage survives bankruptcy.

Board of Directors of Colonial Sq. Homeowners' Assn., Ltd. v. Signorile, NY Slip Op 04653 (2d Dep't September 20, 2023)

Here is the decision.

Motions to extend time.

Under CPLR 2004, "the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." In exercising its discretion to grant an extension, the court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the opponent of the motion.

Bank of N.Y. Mellon v. Ramsamooj, NY Slip Op 04652 (2d Dep't September 20, 2023)

Here is the decision.

Spoliation.

Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126. A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense. In the absence of pending litigation or notice of a specific claim, a defendant will not be sanctioned for discarding items in good faith and pursuant to its normal business practices. 

In this personal injury action, the plaintiff's cross-motion to strike the defendant's answer is denied. The plaintiff did not establish that the defendant was on notice that the evidence might be needed for future litigation at the time the surveillance footage was overwritten. The plaintiff did not notify the defendant of her claim or request that it preserve any surveillance footage until three months after the incident, by which time the surveillance footage had been automatically overwritten according to the defendant's normal business practices.

The defendant's preservation of only a portion of the surveillance footage does not indicate a culpable state of mind, as the defendant's representative, an assistant principal, averred in an affidavit that he saved the 51-second clip of the incident at issue consistent with ordinary business practices. The affidavit was sufficient to provide the court with a basis to find that the search for the surveillance footage had been thorough and that it had been conducted in a good-faith effort to give the footage to the plaintiff. Similarly, there is no evidence to indicate that the defendant was negligent in failing to preserve the additional surveillance footage. Moreover, the plaintiff did not demonstrate that the defendant's failure to preserve all of the surveillance footage fatally compromised her ability to prove her claim.

M.B. v. St. Francis Preparatory Sch., NY Slip Op 04651 (2d Dep't September 20 2023)

Here is the decision.

Court holiday.

Allegations of negligence.

Absent a statute or public policy to the contrary, a contractual provision absolving a party from its own negligence will be enforced. Here, the defendant established its prima facie entitlement to dismissal as a matter of law by submitting the service agreement showing that maintenance of pipes was not covered, and that it was not responsible for frozen pipes or any property damage resulting therefrom.

Allstate Ins. Co. v. Parkside Fuel, Inc., NY Slip Op 04649 (2d Dep't September 20, 2023)

Here is the decision.

Accounts stated.

An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due. The agreement may be express or implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account. In order to establish a prima facie case to recover on an account stated, the plaintiff must establish that it submitted invoices and that the defendant received and retained the invoices without objection for an unreasonable period of time.

Alliance Natl. Ins. Co. v. Hagler, NY Slip Op 04648 (2d Dep't September 20, 2023)

Here is the decision.

Real estate brokers' commissions.

In order to prevail on a cause of action to recover a commission, the broker must establish: (1) that it is duly licensed; (2) that it had a contract, express or implied, with the party to be charged with paying the commission; and (3) that it was the procuring cause of the sale. Where the broker is not involved in the negotiations leading up to the completion of the deal, the broker must establish that it created an amicable atmosphere in which negotiations proceeded, or that it generated a chain of circumstances that proximately led to the sale.

All Is. Estates Realty Corp. v. Singh, NY Slip Op 04647 (2d Dep't September 20, 2023)

Here is the decision.

Dismissal based on documentary evidence.

Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

344 Rockaway Parkway Inv. Group, LLC v. Estate of Nedia Colon, NY Slip Op 04644 (2d Dep't September 20, 2023)

Here is the decision.

Arbitration.

Arbitration is a matter of contract, grounded in the agreement of the parties. On a motion to compel or stay arbitration, the court first must determine whether the parties have agreed to submit their disputes to arbitration, and, if so, whether this particular dispute falls within the scope of their arbitration agreement.

All Is. Estates Realty Corp. v. Singh, NY Slip Op 04646 (2d Dep't September 20, 2023)

Here is the decision.

A default in a personal injury action.

By defaulting, the defendant admitted all traversable allegations in the complaint, including the basic allegation of liability.  Therefore, the only issue to be determined at the inquest is the extent of the damages sustained by the plaintiff, and the court may not consider any issues of liability.

Abad v. Francis Lewis, LLC, NY Slip Op 04645 (2d Dep't September 20 2023)

Here is the decision.

Landlord-tenant law.

Where there is an ambiguity as to the meaning of a provision of a lease that was prepared by the landlord, the ambiguity will be resolved in favor of the tenant.

2330  Ocean Assoc., LLC v. Haroun, NY Slip Op 04643 (2d Dep't September 20, 2023)

Here is the decision.

Appellate practice.

The issues raised in connection with prior interlocutory orders are terminated with entry of the final judgment, but these issues may be reviewed as non-final orders that affect the final judgment, pursuant to CPLR 5501 [a] [1].

U.S. Bank, N.A. v. Kim, NY Slip Op 04706 (1st Dep't September 21, 2023)

Here is the decision.

An enforceable agreement to arbitrate.

Defendant established, prima facie, that there was an arbitration agreement by submitting evidence that plaintiff electronically signed defendant's updated terms of use, which included an arbitration provision, by clicking a checkbox and button that confirmed that she had reviewed and consented to the terms. Although plaintiff disputes whether she had inquiry notice of the terms, she did not affirmatively deny actual notice. In addition, defendant established inquiry notice, as a matter of law, by submitting the email and in-application pop-up screen that informed plaintiff that the changes to terms affected arbitration rights and included prominent hyperlinks to the terms in font commonly understood to signify hyperlinks. Plaintiff's arguments disputing the validity of the terms and raising unconscionability must be decided by the arbitrator, because the terms contain a delegation provision that plaintiff did not specifically challenge. 

Wu v. Uber Tech., Inc., NY Slip Op 04706 (1st Dep't September 21, 2023)

Here is the decision.

The doctrine of law of the case.

The doctrine applies only to legal determinations that were previously resolved on the merits.

47 E. 34th St. (NY) L.P. v. BridgeStreet World, NY Slip Op 04702 (1st Dep't September 21, 2023)

Here is the decision.

Alter ego liability.

On a veil piercing claim based on alter ego liability, the plaintiff must show that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that the domination was used to commit a fraud or wrong against the plaintiff which resulted in the plaintiff's injury. In the absence of any wrongdoing, the defendant is entitled to summary judgment dismissing the claim. 

47 E. 34th St. (NY) L.P. v. BridgeStreet World, NY Slip Op 04702 (1st Dep't September 21, 2023)

Here is the decision.

Summary judgment.

A denial of a summary judgment motion is not an adjudication on the merits. Therefore, a party is not relieved from proving its later entitlement to summary judgment merely because, in motion practice, it had previously made out a prima facie case.

47 E. 34th St. (NY) L.P. v. BridgeStreet World, NY Slip Op 04702 (1st Dep't September 21, 2023)

Here is the decision.

Successor liability.

Generally, a corporation which acquires the assets of another is not liable for its predecessor's torts. There are limited exceptions to this general rule, including the mere continuation theory at issue here, under which there may be liability where the purchasing corporation is merely a continuation of the selling corporation. A successor liability claim cannot stand where the surviving corporation did not acquire the assets of the selling corporation.

47 E. 34th St. (NY) L.P. v. BridgeStreet World, NY Slip Op 04702 (1st Dep't September 21, 2023)

Here is the decision.

Negligent foster care.

Counties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home. In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated.

Grabowski v. Orange County, NY Slip Op 04580 (2d Dep't September 13, 2023)

Here is the decision.

A landowner's duty of care.

A landowner has a duty to maintain its premises in a reasonably safe manner. However, there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. In order to succeed on a summary judgment motion, the defendant must establish that the condition in question was both open and obvious and, as a matter of law, was not inherently dangerous.

Here, in support of its motion, the defendant submitted evidence, including a transcript of the plaintiff's deposition testimony and photographs of the accident site, demonstrating, prima facie, that the condition of the elevated boardwalk was both open and obvious and not inherently dangerous. The plaintiff's testimony established that she was aware of the condition of the boardwalk, including that it was elevated, and that she had ridden her bicycle along the boardwalk, without incident, shortly befoee the accident.

Ferruzzi v. Village of Saltaire, NY Slip Op 04578 (2d Dep't September 13, 2023)

Here is the decision.

Discovery-related sanctions.

The Supreme Court has broad discretion in supervising disclosure and resolving discovery disputes. Pursuant to CPLR 3126, a court may impose sanctions 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. Although public policy strongly favors that actions be resolved on the merits, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct. The willful or contumacious character of a party's conduct can be inferred when, without a reasonable excuse, there is a repeated failure to respond to demands or to comply with the court's orders.

Ferjuste v. 437 BMW, LLC, NY Slip Op 04577 (2d Dep't September 13, 2023)

Here is the decision.

Restrictive covenants.

New York favors free and unencumbered use of real property, and covenants restricting a property's use are strictly construed against those seeking to enforce them.  A restrictive covenant may not be given an interpretation extending beyond the clear meaning of its terms. However, where proved by clear and convincing evidence, the covenant will be enforced pursuant to its clear meaning.

Ezekills Constr., LLC v. Saskas, NY Slip Op 04576 (2d Dep't September 13, 2023)

Here is the decision.

Premature motions for summary judgment.

Pursuant to CPLR 3212[f], party who contends that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the movant's knowledge and control. Here, the defendants' professed need to conduct depositions did not warrant denial of summary judgment. Since the defendants already had personal knowledge of the relevant facts, the mere hope or speculation that evidence might be uncovered is insufficient.

Elfe v. Roman, NY Slip Op 04575 (2d Dep't September 13, 2023)

Here is the decision.

Indemnification.

Where the contract relates to the construction of a building, a provision purporting to indemnify or hold harmless the promisee against liability for bodily injury caused by the promisee's negligence is unenforceable, pursuant to General Obligations Law § 5-322.1[1].

Cedillo v. Nautilus Realty Ltd. Partnership, NY Slip Op 04571 (2d Dep't September 13, 2023)

Here is the decision.

A time-barred foreclosure action.

The defendant established, prima facie, that this action to foreclose a mortgage was untimely by submitting the complaint in a prior action to foreclose the mortgage, which established that the statute of limitations expired before this action was commenced. 

Deutsche Bank Natl. Trust Co. v. Swinson, NY Slip Op 04573 (2d Dep't September 13, 2023)

Here is the decision.

Service of process.

It is axiomatic that a court lacks personal jurisdiction over a defendant when the plaintiff fails to properly effectuate service of process. Service upon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308. There are circumstances in which a defendant may be estopped from challenging the location or propriety of service, such as when the defendant willfully misrepresents his address, or engages in conduct calculated to prevent the plaintiff from learning his actual place of residence. A defendant in a vehicular accident case may be precluded from contesting service at a former address where the defendant failed to fulfill the statutory obligation of timely notifying the Division of Motor Vehicles of an address change.

Castillo-Florez v. Charlecius, NY Slip Op 04570 (2d Dep't September 13, 2023)

Here is the decision.

The enforceability of a release.

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. A release that, on its face, is complete, clear, and unambiguous must be enforced according to the plain meaning of its terms. Where the release is unambiguous, a court may not look to extrinsic evidence to determine the parties' intent. 

Rafailova v. Leading Ins. Group Ins. Co., Ltd., (2d Dep't August 30, 2023)

Here is the decision.

Granting relief from an order.

CPLR 5015(a)(5) permits a court which rendered an order to relieve a party from the order where there has been a "reversal, modification or vacatur of a prior judgment or order upon which it is based." In addition, a court has the inherent power to grant a motion to vacate its own judgment or order for sufficient reason, in furtherance of justice.

BSD 253, LLC v. Wilmington Sav. Fund Socy., FSB, NY Slip Op 04430 (2d Dep't August 30, 2023) 

Here is the decision.

A default in opposing a motion.

The plaintiff commenced this action to cancel and discharge a mortgage on certain real property. After issue was joined, the plaintiff moved for summary judgment on the complaint. The Supreme Court granted the plaintiff's motion upon the defendant's failure to file opposition papers. The defendant thereafter moved for leave to renew the plaintiff's unopposed motion. The court denied the defendant's motion for leave to renew, and the defendant appeals. The defendant's motion for leave to renew was properly denied, as there was no opposition to the plaintiff's motion that could have been renewed The proper procedure to cure a default in opposing a motion is to move pursuant to CPLR 5015(a) to vacate the default, and, if necessary, to appeal from a denial of that motion.

BSD 253, LLC v. Wilmington Sav. Fund Socy., FSB, NY Slip Op 04429 (2d Dep't August 30, 2023)

Here is the decision.

Orders of reference.

A referee's authority derives from a court's order of reference. The referee's jurisdiction is limited to those matters that are expressly specified in the order of reference.

Wachovia Mtge., FSB v. Galiani, NY Slip Op 04428 (2d Dep't August 30, 2023)

Here is the decision.

Leave to renew.

A motion for leave to renew based upon an alleged change in the law must demonstrate that there has been a change in the law that would change the prior determination, pursuant to CPLR 2221[e][2].

U.S. Bank N.A. v. Valencia, NY Slip Op 04426 (2d Dep't August 30, 2023)

Here is the decision.

Leave to amend a pleading.

In the absence of prejudice or surprise to the opposing party, a motion to amend should be granted unless the proposed amendment is palpably insufficient or patently devoid of merit.

Kennedy v. Bracey, NY Slip Op 04425 (2d Dep't August 30, 2023)

Here is the decision.

Contract law.

Unlike a negligence cause of action, nominal damages are available for breach of contract. Because actual damages are not an essential element of a breach of contract cause of action, the fact that the plaintiff is precluded from establishing actual damages in this action is not decisive on the breach of contract claim.

Giamundo v. Dunn, NY Slip Op 04422 (2d Dep't August 30, 2023)

Here is the decision.

Collateral estoppel.

The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action an issue that was clearly raised in a prior action and decided against that party or those in privity with it. In order to give the prior determination conclusive effect, two conditions must be met: first, there must be an identity of the issue which was necessarily decided in the prior action and is decisive of the present action, and, second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination. The party attempting to defeat the application of collateral estoppel has the burden to establish that it did not have a full and fair opportunity to litigate the issue.

Giamundo v. Dunn, NY Slip Op 04422 (2d Dep't August 20, 2023)

Here is the decision.

CPLR 4317 (b).

An order of reference to determine damages is appropriate where the determination will require examination of a long account and primarily presents an issue of appropriate computation.

Screen Media Ventures, LLC v. Capella Intl., Inc., NY Slip Op 04479 (1st Dep't August 31, 2023)

Here is the decision.

Long-arm jurisdiction.

The invocation of New York's long-arm jurisdiction pursuant to CPLR 302(a)(2) requires the defendant's physical presence in New York at the time of the tort. The mere fact that the injury occurred in New York is insufficient.

SOS Capital v. Recycling Paper Partners of PA, LLC, NY Slip Op 04480 (1st Dep't August 31, 2023)

Here is the decision.

Motions to reargue.

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion," pursuant to CPLR 2221[d][2]. Motions for reargument are addressed to the sound discretion of the court which decided the prior motion. The motion does not provide an unsuccessful party with successive opportunities to reargue issues that were previously decided or to present arguments that are different from those that were originally presented.

Hallett v. City of New York, NY Slip Op 04367 (2d Dep't August 23, 2023)

Here is the decision.

Failure to appear at a court conference.

In order to vacate a default in appearing at a scheduled court conference, the plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action. The determination of whether an excuse is reasonable is within the sound discretion of the Supreme Court. In its exercise of discretion, the court may consider factors such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits. A court may accept law office failure as a reasonable excuse, but the party seeking to vacate the default must provide detailed allegations of fact that explain the failure. A pattern of willful default and neglect will not be excused. 

Gutierrez v. Plonski, NY Slip Op 04366 (2d Dep't August 23, 2023)

Here is the decision.

Indemnification.

Under the general rule, attorney's fees are incidents of litigation, and a prevailing party may not collect fees unless an award is authorized by an agreement between the parties, a statute, or a court rule. A contract may include a promise by one party to hold the other harmless for a particular loss or damage, and counsel fees are a form of damage which may be indemnified in this way. A contract assuming that obligation must be strictly construed in order to avoid reading into it a duty which the parties did not intend. The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances. 

Giannakopoulos v. Figame Realty Mgt., NY Slip Op 04364 (2d Dep't August 23, 2023)

Here is the decision.

Applicability of the emergency doctrine.

The court granted that branch of the plaintiff's motion which was to strike the tenth affirmative defense, asserting the emergency doctrine, as the defendants were not faced with a sudden and unexpected circumstance.

Depass v. Mercer Sq., LLC, NY Slip Op 04363 (2d Dep't August 23, 2023)

Here is the decision.

Motions to intervene.

A court, in its discretion, may grant the motion when the proposed intervenor's claim or defense and the main action have a common question of law or fact, pursuant to CPLR 1013. Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance since, whatever the basis, a timely motion for leave to intervene should be granted where the intervenor has a real and substantial interest in the outcome of the proceedings. In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party.

Dekalb Assets 2015, LLC v. Roman, NY Slip Op 04362 (2d Dep't August 23, 2023)

Here is the decision.

Discovery motions.

Pursuant to 22 NYCRR 202.7, motions relating to disclosure or to a bill of particulars must include an affirmation that counsel has conferred with opposing counsel in a good-faith effort to resolve the issues. The affirmation must specify the time, place, and nature of the conferral, as well as the issues discussed and their resolution. If there was no conferral, the affirmation must state why. Failure to submit the affirmation warrants denial of the motion.

Behar v. Wiblishauser, NY Slip Op 04357 (2d Dep't August 23, 2023)

Here is the decision.

A claim against a municipality.

A plaintiff seeking to recover in tort against a municipality must serve a notice of claim to enable authorities to investigate, collect evidence and evaluate the merits of the claim. The notice of claim must set forth the nature of the claim, and the time, place, and manner in which the claim arose. Where, as here, the municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies. There are two exceptions to the prior written notice requirement: where an affirmative act of negligence by the municipality creates the defect; or where a special use of the property confers a special benefit upon the municipality.

Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint by providing an affidavit of its Deputy Commissioner of Public Works indicating that he had conducted a records search and found no prior written notice of the ice condition alleged by the plaintiff.  In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact.

Banschick v. City of Long Beach, NY Slip Op 04356 (2d Dep't August 23, 2023)

Here is the decision.

Slips-and-falls.

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the allegedly hazardous condition that caused the accident, or that it did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. In order to meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the accident. Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice. 

Armenta v. AAC Cross County Mall, LLC, NY Slip Op 04355 (2d Dep't August 23, 2023)

Here is the decision.

A claim to quiet title.

In order to maintain a cause of action to quiet title to real property, the plaintiff must allege actual or constructive possession of the property and the existence of a removable cloud on the property, which is an apparent title to the property, such as in a deed or other instrument, that is actually invalid or inoperative.

41 Riv. Rd., LLC v. Bank of Am., N.A., NY Slip Op 04354 (2d Dep't August 23, 2023)

Here is the decision.

The admissibility of business records.

A witness may read into the record from the contents of a document that has been admitted into evidence, but, if the document has not been admitted into evidence, the witness's description of the document is inadmissible hearsay. It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.

Christiana Trust v. Corbin, NY Slip Op 04298 (2d Dep't August 16, 2023)

Here is the decision.

Summary judgment.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. The failure to make this showing requires denial of the motion, regardless of the sufficiency of the opposing papers. A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case.

Bourne v. Martin Dev. & Mgt., LLC, NY Slip Op 04297 (2d Dep't August 16, 2023)

Here is the decision.

Untimely pleadings.

In order to compel a party to accept an untimely pleading, the movant must demonstrate both a reasonable excuse for its delay and a potentially meritorious defense to the claims to which it is responding  The lack of an explanation for the delay warrants denial of the motion.

Bank of N.Y. Mellon v. Norton, NY Slip Op 04295 (2d Dep't August 16, 2023)

Here is the decision.

Pleading equity in the alternative.

Because plaintiffs allege that the brokerage agreement is void and unenforceable, they may assert a claim for unjust enrichment in the alternative to recover the brokerage commission that they had paid defendant.

SL 4000 Conn. LLC v. CBRE, Inc., NY Slip 04350 (1st Dep't August 17 2023) 

Here is the decision.

Service of process.

At a hearing to determine the validity of service of process, the burden of proving personal jurisdiction is upon the party asserting it, and that party must sustain that burden by a preponderance of the credible evidence. Where a process server has no independent recollection of events, the process server's logbook may be admitted in evidence as a business record. Mailing may be proved by any number of documents meeting the requirements of the business records exception to the hearsay rule under CPLR 4518. 

Bank of N.Y. Mellon v. Chaudhury, NY Slip Op 04294 (2d Dep't August 16, 2023)

Here is the decision.

Contract law.

When the language of a contract is ambiguous, its construction presents a question of fact that may not be resolved by the court on a motion for summary judgment.  A contract is ambiguous if its terms are susceptible to more than one reasonable interpretation.

Hong v. Renval Constr., LLC, NY Slip Op 04196 (2d Dep't August 9 2023)

Here is the decision.