An insurance carrier's duty to defend.

The carrier's duty to defend arises whenever the allegations in the complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy. If any of the claims against an insured arguably arise from a covered event, the insurer is required to defend the entire action.  There is a duty defend if the allegations of the complaint are even potentially within the language of the insurance policy.

1416 Coney Is. Realty, LLC v. Wesco Ins. Co., NY Slip Op 03320 (2d Dep't June 21, 2023)

Here is the decision.

Contract law.

A contract that assumes an obligation to indemnify must be strictly construed, and the court will not read into the agreement a specific obligation where none is plainly stated.

Tavarez v LIC Dev. Owner L.P., NY Slip Op 03318 (1st Dep't June 20 2023)

Here is the decision.

Contract law.

On the breach of contract claim, plaintiffs are limited to out-of-pocket damages for any breach of the parties' letter of intent, which was merely an agreement to agree.

Cresco Labs N.Y., LLC v. Fiorello Pharms., Inc., NY Slip Op 03305 (1st Dep't June 20, 2023)

Here is the decision.

Respondeat superior.

The doctrine of respondeat superior makes an employer vicariously liable for torts committed by an employee acting within the scope of the employment if the tortious conduct is generally foreseeable and a natural incident of the employment. An employee's actions fall within the scope of employment where the purpose in performing the actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business. An employee's action also falls within the scope of employment when it is performed while the employee is engaged generally in the employer's business, or if the act may reasonably be said to be necessary or incidental to the employment. Employer responsibility is broad, especially where the employee's activity may be regarded as incidental to the furtherance of the employer's interest. 

An employer cannot be held vicariously liable for its employee's alleged tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer's business at the time of the incident. Generally, whether an employee was acting within the scope of his employment is a question of fact for the jury.

Cobena v. Antonioli, NY Slip Op 03221 (2d Dep't June 14, 2023_

Here is the decision.

Res ipsa loquitur.

For the doctrine of res ipsa loquitur to apply, a plaintiff must establish three conditions: the event must be of a kind that ordinarily does not occur in the absence of someone's negligence; it must be caused by an agency or instrumentality within the exclusive control of the defendant; and it must not have been due to any voluntary action or contribution on the part of the plaintiff.  If the plaintiff satisfies the burden of proof on these three elements, the fact-finder may infer negligence. The exclusive control element is not a rigid rule and it may be applied in circumstances when the accident occurred after the instrumentality left the defendant's control, if it is shown that the defendant had exclusive control at the time of the alleged act of negligence. The plaintiff does not have to eliminate all other causes, but, rather, must show that their likelihood is reduced so that the defendants' conduct is more probably the cause. The plaintiff must show that the defendant's control was sufficiently exclusive to fairly rule out some other agency causing the purported defect.  

Bicchetti v. Atlantic Toyota, NY Slip Op 03219 (2d Dep't June 14, 2023)

Here is the decision.

Appellate practice.

Plaintiffs abandoned their appeal from the dismissal of their claims for breach of fiduciary duty and unjust enrichment by failing to make any arguments as to those claims in their appellate briefs.

Weis v. Rheem, Bell & Freeman, LLP, NY Slip Op 03297 (1st Dep't June 15, 2023)

Here is the decision.

Contract law.

Even if a party has not expressly breached a contract, it may breach the implied duty of good faith where it exercises a contractual right as part of a scheme to deprive the other party of the benefit of its bargain. A plaintiff's breach of the implied covenant claim is not duplicative where it seeks redress for injuries that are separate from the breach of contract claim. 

Barnett v. Berkowitz, NY Slip Op 03286 (1st Dep't June 15, 2023)

Here is the decision.

Service of process.

Ordinarily, a process server's affidavit constitutes prima facie evidence that the defendant was validly served. Bare and unsubstantiated denials of receipt of the summons and complaint are insufficient to rebut the presumption of proper service. However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit, and necessitates an evidentiary hearing.

Aikens v. Kouchnerova, NY Slip Op 03218 (2d Dep't June 14, 2023)

Here is the decision.

Sanctions for spoliation.

Defendants' motion for sanctions is granted to the extent of ordering an adverse inference instruction for plaintiff's failure to preserve text messages to and from a former co-worker. The lost texts were relevant to contested issues in this action, and plaintiff acted negligently in failing to preserve them when she purportedly broke her phone.

Shamash v. David Bocchi, Inc., NY Slip Op 03213 (1st Dep't June 13, 2023)

Here is the decision.

Leave to amend.

A motion for leave to amend the complaint will be denied where the moving papers do not include the proposed amendment showing the changes or additions, pursuant to CPLR 3025[b].

Wiltz v. New York Univ., NY Slip Op 03215 (1st Dep't June 13, 2023)

Here is the decision.

Appellate practice.

The appeal is dismissed because plaintiff failed to file a proper appellate record. Plaintiff failed to include the underlying motion to dismiss, her opposition to that motion, and the exhibits annexed to the parties' submissions, pursuant to CPLR 5526. Without the benefit of a proper record, the Appellate Division cannot review this matter, as the trial court granted the motion to dismiss based in part on the documentary evidence annexed to the parties' submissions.

Woodward v. City of New York, NY Slip Op 03216 (1st Dep't June 13, 2023)

Here is the decision.

Correcting a mistake in an order or judgment.

A trial court has discretion to correct an order or judgment which contains a mistake, defect, or irregularity that does not affect a substantial right of a party, pursuant to CPLR 5019[a].

Fisch v. Wells Fargo Bank, N.A., NY Slip Op 03001 (2d Dep't June 7, 2023)

Here is the decision.

Pleading the pandemic as an affirmative defense.

In this loan default action, defendants plead, as an affirmative defense, that plaintiff's damages result from circumstances beyond defendants' control, and, therefore, are barred by the doctrines of impossibility and frustration of purpose. Defendants also plead a counterclaim which asks the court to declare that defendants' obligations to plaintiff pursuant to the loans are discharged because the sharp reduction in revenue that taxicabs suffered due to plummeting ridership during the COVID-19 pandemic excuses defendants' contractual obligations. However, defendants do not show that the financial hardship they suffered is tantamount to the destruction of the subject matter" of the loan agreements or that their reasons for performing under the loan agreements ceased to exist, such that the doctrines of impossibility or frustration of purpose would apply. 

What is more, defendants' invocation of the pandemic as grounds for application of the doctrines of frustration of purpose or impossibility is an approach that has been squarely rejected, even where, because of the pandemic, the business of the party seeking application of such doctrines was temporarily suspended. 

Pentagon Fed. Credit Union v. Popovic, NY Slip Op 03076 (1st Dep't June 8, 2023)

Here is the decision.

Extending time to serve process.

 CPLR 306-b provides, in pertinent part, that "[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action . . . . If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service." The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests as presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or the lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of the plaintiff's request for the extension of time, and prejudice to the defendant. No single factor is determinative. 

Deutsche Bank Trust Co. Ams., v. Lottihall, NY Slip Op 02999 (2d Dep't June 7, 2023)

Here is the decision.

Dismissal of a complaint as abandoned.

CPLR 3215(c) provides that if a plaintiff fails to take proceedings for the entry of judgment within one year after the defendant's 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 avoid dismissal pursuant to the statute, it is not necessary for the plaintiff actually to obtain a default judgment within one year. The plaintiff is not even required to specifically seek a default judgment within the year. As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint pursuant to CPLR 3215(c). The statutory language is not discretionary, but mandatory, inasmuch as courts "shall" dismiss claims for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned. The one exception to the otherwise mandatory language of CPLR 3215(c) is that the failure to timely seek a default on an unanswered complaint or counterclaim may be excused if sufficient cause is shown why the complaint should not be dismissed. The Second Department has interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious.   The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the Supreme Court. 

Bank of N.Y. v. Pieloch, NY Slip Op 02996 (2d Dep't June 7, 2023)

Here is the decision.

Contract law.

A defendant's failure to read the agreement before executing it is not a defense to a claim for breach of contract because a party is under an obligation to read a document before he signs it.

Walber 82 St. Assoc., L.P. v. Fisher, NY Slip Op 02993 (1st Dep't June 6, 2023)

Here is the decision.

A premature motion for summary judgment.

The court denies the pre-discovery motion as premature based on plaintiff's showing that facts essential to justify opposition to defendant's motion may lie within defendant's exclusive knowledge or control, pursuant to CPLR 3212[f].

North Flatts LLC v. Belkin Burden Goldman, LLP, NY Slip Op 02954 (1st Dep't June 1, 2023)

Here is the decision.

Leave to intervene.

A motion seeking leave to intervene, whether made pursuant to CPLR 1012 or 1013, must include the would-be intervenor's proposed pleading, as required by CPLR 1014. Here, the movant did not submit a proposed pleading with the motion for leave to intervene. Neither did the movant submit an affidavit which in some cases may excuse the failure to attach a proposed pleading. The motion is denied.

U.S. Bank Trust N.A. v. 21647 LLC, NY Slip Op 02955 (1st Dep't June 1, 2023)

Here is the decision.

Defaulting on a real estate contract.

A party to a contract cannot rely on another's failure to perform a condition precedent where he himself has frustrated or prevented the occurrence of the condition. Therefore, absent a breach on the part of the seller, a purchaser who defaults on a real estate contract without lawful excuse cannot recover its down payment.

Agosta v. Abraham, NY Slip Op 02934 (1st Dep't June 1, 2023)

Here is the decision.

Slips, trips, and falls.

Generally, the issue of whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury to decide. However, injuries resulting from trivial defects are not actionable and may be decided as a matter of law. A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that, under the circumstances of the case, the defect is physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. On that showing, the burden shift to the plaintiff to establish an issue of fact so as to survive dismissal. In determining whether a defect is trivial, the court must examine all of the facts presented, including the defect's width, depth, elevation, irregularity, and appearance, along with the time, place, and circumstance of the injury. Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable.

Balbo v. Greenfield's Mkt. of Bethpage, LLC, NY Slip Op 02860 (2d Dep't May 31, 2023)

Here is the decision.

Motion practice.

Pursuant to the Uniform Civil Rules for the Supreme Court and the County Court, at 22 NYCRR 202.8-b[a], [c], moving papers must include a word-count certification. Failure to submit the certification is a technical defect that the motion court should overlook.  However, failure to comply with the requirements of 22 NYCRR 202.7 cannot be overlooked. Pursuant to that rule, a discovery motion must be accompanied by moving counsel's affirmation that he or she has conferred with opposing counsel in a good-faith effort to resolve the issues raised by the motion. The purpose of this rule is to avoid the unnecessary expenditure of limited judicial resources in circumstances where, through constructive dialogue, the attorneys could resolve the issues that otherwise would be raised in a motion. The affirmation must indicate the time, place, and nature of the consultation and the issues discussed and their resolution, or good cause why no such conferral was held.  The failure to submit the affirmation warrants denial of the motion.

Anuchina v. Marine Transp. Logistics, Inc., NY Slip Op 02858 (2d Dep't May 31, 2023)

Here is the decision.

Default judgments.

Pursuant to CPLR 3215(f), an applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear. In order to demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine that there is a viable cause of action. In opposition to a motion for leave to enter a default judgment, the defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action.  Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits. The determination of what constitutes a reasonable excuse lies within the discretion of the motion court. Where the defendant fails to demonstrate a reasonable excuse for its default, the court need not consider whether the defendant possesses a potentially meritorious defense to the action.  

Cartessa Aesthetics, LLC v. Demko, NY Slip Op 03328 (2d Dep't June 21, 2023)

Here is the decision.

Liquidated damages.

Whether an early termination fee is an enforceable liquidation of damages or an unenforceable penalty is a question of law, giving due consideration to the nature of the contract and the circumstances. A liquidated damages clause is enforceable if the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation. The burden is on the party seeking to avoid liquidated damages to show that the stated damages are, in fact, a penalty. This burden is met with evidence establishing that actual damages were readily ascertainable at the time the contract was entered into or that the liquidated damages are conspicuously disproportionate to foreseeable or probable losses.

Pool Doctor Mgt. Serv., Inc. v. Board of Mgrs. of the Meadowlands Estates Condominium, Inc., NY Slip Op 02800 (2d Dep't May 24, 2023)

Here is the decision.

Specific performance.

There is no automatic contractual right to specific performance; it is an equitable remedy for a breach of contract. The grant of specific performance is a matter of judicial discretion, which is controlled by the established doctrines and settled principles of equity. A court reviewing an agreement that provides for specific performance should accord deference to the parties' manifest intent, unless enforcement of the provision would produce an inequitable result. Parties are bound to the terms of their contracts, including their remedies.

A party that is contractually entitled to specific performance must demonstrate that it substantially performed its contractual obligations, that the breaching party was able to convey, and that there is no adequate remedy at law.

301 E. 60th St. LLC v. Competitive Solutions LLC, NY Slip Op 02842 (1st Dep't May 30, 2023)

Here is the decision.

Notices of claim.

In determining whether to grant leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc under General Municipal Law § 50-e(5), the court, in its discretion, must consider all relevant facts and circumstances, including, but not limited to, whether (1) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in its defense. No single factor is determinative, but the timing of the public corporation's actual knowledge of the essential facts constituting the claim is of great importance. In order for medical records to establish actual knowledge within the meaning of the statute, the records must establish that the medical staff, by its acts or omissions, inflicted an injury on the plaintiff.

Santos v. Westchester Med. Ctr., NY Slip Op 02802 (2d Dep't May 24, 2023)

Here is the decision.

June 6, 1944.

Appellate practice.

An argument is not properly before the Appellate Division if it is raised for the first time on appeal or if it relies on matters outside the record. 

Matter of Casanas, NY Slip Op 02826 (1st Dep't May 25, 2023)

Here is the decision.

Discovery demands.

An order striking the answer was entered after the court found that defendant failed to comply with the provisions of a conditional order striking the answer unless defendant complied with specified discovery demands within a specified time. The conditional order was issued following a prolonged period in which defendant provided partial but inadequate responses to outstanding discovery demands and orders, as well as a stipulation entered into between the parties. CPLR 3126 authorizes trial courts to craft self-executing orders that impose discovery sanctions on a party unless that party submits to the disclosure within a specified time. Conditional orders become absolute upon failure to fully comply wih them. Defendant's arguments that its noncompliance was not willful or contumacious is irrelevant because, where a litigant fails to comply with a conditional order, the court is not required to find that its failure to comply was willful. Relief from a conditional order requires a reasonable excuse for the failure to produce the requested items and the showing of a meritorious defense. Defendant's argument that plaintiff's document demands were improper and should not have been enforced by the court is unavailing since it failed to timely object to the document demands and never sought a protective order pursuant to CPLR 3103.

Citizen Watch Co. of Am., Inc. v. Zapco 1500 Inv., L.P., NY Slip Op 02823 (1st Dep't May 25, 2023)

Here is the decision.

Claims against the State.

Pursuant to Court of Claims Act § 11(b), a claim against New York State must specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed. Noncompliance with the statutory requirements is a jurisdictional defect that requires dismissal of the claim. A sufficiently detailed description of the claim's particulars is necessary in order to enable the State to investigate and promptly ascertain the existence and extent of its liability. Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed. However, absolute exactness is not required, so long as the claim's particulars are detailed in a manner sufficient to permit investigation. 

Wimbush-Burkett v. State of New York, NY Slip Op 02804 (2d Dep't May 24, 2023)

Here is the decision.

Appellate practice.

An order that does not decide a motion made on notice is not appealable as of right under CPLR 5701(a)(2). However, the Appellate Division may deem the notice of appeal from the order to be a motion for leave to appeal, and may grant the motion so as to hear the appeal.

Moye v. Mount Sinai Hosp., NY Slip Op 02828 (1st Dep't May 25, 2023)

Here is the decision.

Damages for fraud.

Damages resulting from fraudulent inducement are meant to indemnify a plaintiff for the actual pecuniary loss sustained as the direct result of the fraud. Damages are calculated so as to compensate the plaintiff for what was lost because of the fraud, not for what might have been gained in the absence of any fraud. Damages are limited to the amount necessary to restore the plaintiff to its position before the fraud was committed. 

NMR e-Tailing LLC v. Oak Inv. Partners, NY Slip Op 02830 (1st Dep't May 25, 2023)

Here is the decision.