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.

Motions to dismiss.

A motion to dismiss on the ground that the action is barred by documentary evidence, pursuant to CPLR 3211(a)(1), may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thus conclusively establishing a defense as a matter of law. 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 the plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. 

Gold v. 22 St. Felix, LLC, NY Slip Op 04194 (2d Dep't August 9, 2023)

Here is the decision.

Dismissal for failure to serve a complaint.

In order to avoid dismissal of an action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), the plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action. The determination of what constitutes a reasonable excuse for a delay in serving the complaint is within the discretion of the court. When exercising its discretion, the court should consider the extent of the delay, the prejudice to the opposing party, and the lack of an intent to abandon the action.

Fox v. Gross, NY Slip Op 04192 (2d Dep't August 9, 2023)

Here is the decision.

CPLR 3215(c).

The statute generally provides that if 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, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by a defendant to dismiss the complaint as abandoned pursuant to the statute is untimely when it is made after the entry of a judgment of foreclosure and sale.

Federal Natl. Mtge. Assn. v. Marty, NY Slip Op 04191 (2d Dep't August 9, 2023)

Here is the decision.

Contract law.

Parol evidence, or evidence outside the four corners of the document, is admissible only if the court finds an ambiguity in the contract.

Del Vecchio v. Del Vecchio, NY Slip Op 04189 (2d Dep't August 9 2023)

Here is the decision.

Failure to oppose a motion.

A party seeking to vacate an order entered upon its failure to oppose a motion must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion. The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion. In making its determination, the court should 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.

Codispoti v. Beth Israel Med. Ctr., NY Slip Op 04187 (2d Dep't August 9, 2023)

Here is the decision.

Arguments raised for the first time in reply papers.

The Appellate Division affirmed the Supreme Court's denial of the plaintiff's motion, pursuant to CPLR 306-b, to extend the time to serve the summons and complaint upon the defendant. Contrary to the plaintiff's contention, an extension of time was not warranted in the interest of justice. The plaintiff did not  raise in its main brief its contention that an extension of time was warranted for good cause. As a result, the plaintiff abandoned any argument it may have had in that regard, despite its attempt to raise the issue in its reply brief. 

Christiana Trust v. Leriche, NY Slip Op 04186 (2d Dep't August 9, 2023)

Here is the decision.

Legal malpractice and attorney deceit.

An action to recover damages for legal malpractice must be commenced within three years of the accrual of the cause of action, whether the underlying theory is based in contract or tort, as set forth in CPLR 214[6]. An action to recover damages for attorney deceit under Judiciary Law § 487 is subject to the six-year statute of limitations set forth in CPLR 213(1). A legal malpractice action that also alleges attorney deceit must be dismissed as time-barred if not commenced within three years of accrual, if the Judiciary Law § 487 cause of action is premised on the same facts as the legal malpractice cause of action and does not allege distinct damages.

Catsiapis v.  Pardalis & Nohavicka, LLP, NY Slip Op 04185 (2d Dep't August 9, 2023)

Here is the decision.

Employment discrimination based on a disability.

A complaint states a cause of action to recover damages for employment discrimination on the basis of disability in violation of the New York State Human Rights Law if it alleges that the plaintiff suffers from a disability and that, because of  the disability, the plaintiff was discriminated against in the terms, conditions, or privileges of employment or the refusal to hire. In order to state a claim under the State law, the complaint and supporting documentation must set forth factual allegations sufficient to show that, with reasonable accommodations, the plaintiff could perform the essential functions of the job.

The New York City Human Rights Law provides broader protections than the State law. In order to state a cause of action for employment discrimination on the basis of disability in violation of the City law, a complaint must allege that the plaintiff was disabled and was discriminated against based on the disability.

Brouillard v. Sunrun, Inc., NY Slip Op 04184 (2d Dep't August 9, 2023)

Here is the decision.

Civil contempt.

In order to prevail on a motion to hold a party in civil contempt, the movant must establish, by clear and convincing evidence, the following: (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate; (2) the appearance, with reasonable certainty, that the order was disobeyed; (3) that the party to be held in contempt had knowledge of the court's order; and (4) prejudice to the right of a party to the litigation. If the movant makes the requisite showing, the burden shifts to the alleged contemnor to refute the movant's evidence, or to offer evidence of a defense, such as an inability to comply with the order. A hearing is required only if there is a factual dispute which cannot be resolved on the papers alone.

Anonymous 2011-3 v. Anonymous 2011-4, NY Slip Op 04183 (2d Dep't August 9 2023)

Here is the decision.

A defamation claim.

The claim is dismissed to the extent that the particular words complained of are not set forth in the complaint, as required by CPLR 3016[a]. Plaintiff's contention that the statements that were published in the New York Post had been incorporated into the complaint is unavailing, since the article was not annexed to the pleading. 

Hammond v. Equinox Holdings LLC, NY Slip Op 04257 (1st Dep't August 10, 2023)

Here is the decision.

Contrract law.

The burden of proving the existence, terms, and validity of a contract rests on the party seeking to enforce it. This requires, in the first instance, authentication of the purported writing. Authentication may be effected by various means, including, for example, by certificate of acknowledgment, pursuant to CPLR 4538, by comparison of handwriting, pursuant to CPLR 4536, or by the testimony of a person who witnessed the signing of the document. If the signature is forged, the contract is void ab initio.

Knight v. New York & Presbyt. Hosp., NY Slip Op 04258 (1st Dep't August 10, 2023)

Here is the decision.

Contractual forum selection clauses.

Where no material facts are in dispute, a contractual forum selection clause is prima facie valid and enforceable, absent a showing that the provision is unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or that a trial in the designated forum would be so difficult as to deprive the challenging party of its day in court.

Knight v. New York & Presbyt. Hosp., NY Slip Op 04258 (1st Dep't August 10, 2023)

Here is the decision.

Affidavits as hearsay.

An affiant's assertion, without the business records upon which he relied in making the assertion, constitutes inadmissible hearsay. Here, the plaintiff acknowledges that it did not produce the business records regarding the defendant's payment history until it moved for a judgment of foreclosure and sale. Thus, the plaintiff's motion for summary judgment was supported only by an affiant's bare assertion that the defendant was in default. This was inadmissible hearsay.

Bank of N.Y. Mellon v. Giammona, NY Slip Op 04099 (2d Dep't August 2, 2023)

Here is the decision.

Motions for leave to renew.

A motion for leave to renew which is not based upon a change in the law must be based upon new facts that were not offered on the prior motion and that would change the prior determination, and must contain a reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][2].

Bockstruck v. Town of Islip, NY Slip Op 04100 (2d Dep't August 2, 2023)

Here is the decision.

Notice requirement in a foreclosure action.

RPAPL 1304(1) provides that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." Strict compliance with the statutory notice provision is a condition precedent to the commencement of a foreclosure action. Proof of mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that the items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. Here, the plaintiff established that the requisite notice was sent to the defendant in the prescribed manner by submitting the affidavit of an employee of the plaintiff's loan servicer, who had knowledge of the loan servicer's standard office procedures for mailing RPAPL 1304 notices and described those notices, and, by reference to business records annexed to the affidavit, which confirmed that those procedures were adhered to in this case. In opposition, the defendant's bare denial of receipt of the notice was insufficient to raise a triable issue of fact.

Bank of Am., N.A. v. Gonzalez, NY Slip Op 04098 (2d Dep't August 2, 2023)

Here is the decision.

Dismissal after a default.

Pursuant to CPLR 3215(c), "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint." In order to avoid dismissal, it is not necessary that the plaintiff actually obtain a default judgment within one year of the default. In fact, the plaintiff is not even required to seek a default judgment within a year. The case is not subject to dismissal as long as the plaintiff is taking proceedings that manifest an intent not to abandon the case but, instead, to seek a judgment. In addition, where an action is subject to a mandatory settlement conference, pursuant to CPLR 3408), the one-year deadline imposed by CPLR 3215(c) is tolled.

Bank of Am. N.A. v. Bhola, NY Slip Op 04097 (2d Dep't August 2, 2023)

Here is the decision.

Limitations period on a foreclosure action.

An action to foreclose a mortgage is subject to a six-year statute of limitations, pursuant to CPLR 213[4]. Once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt. The filing of a verified foreclosure complaint may evince an election to accelerate. Lenders may revoke the acceleration of the full mortgage loan balance, so long as the revocation is accomplished by an affirmative act occurring within six years of the earlier acceleration. 

Abadin v. HSBC Bank USA, N.A., NY Slip Op 04095 (2d Dep't August 2, 2023)

Here is the decision.

Terminating a probationary teacher.

A probationary teacher may be terminated during the probationary period for any reason, or no reason at all, and without a hearing, unless the teacher establishes that employment was terminated for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith. The petitioner bears the burden of establishing, by competent evidence, bad faith or illegal reasons. Here, the evidence demonstrates that the petitioner received multiple letters to file, that she received an unsatisfactory observation rating, and that she lacked professionalism during her probationary employment. This evidence demonstrated that the respondent denied the petitioner tenure and discontinued her probationary employment in good faith.

Matter of Terelle v. New York City Dept. of Educ., NY Slip Op 03921 (2d Dep't July 26, 2023)

Here is the decision.

Appellate practice.

An order denying a motion to compel a witness to answer questions propounded at an examination before trial is similar to a ruling made in the course of the examination itself, and is not appealable as of right, even where it was made upon a full record and on the plaintiffs' motion to compel responses. Neither is an order granting a motion for a protective order precluding certain questioning of a witness at a deposition appealable as of right. Here, the plaintiffs sought leave to appeal after their appeal was perfected. Leave is denied.

Martino v. Jae Ho Lee, NY Slip Op 03915 (2d Dep't July 26, 2023)

Here is the decision.

Contract law.

A contract is interpreted in accordance with the intent of the parties, and the best evidence of their intent is what they express in their written agreement. Clear and unambiguous contractual terms must be enforced according to their plain meaning, and when the terms are clear and unambiguous, the court cannot look beyond the four corners of the contract. A contract is unambiguous if, on its face, it is reasonably susceptible of only one meaning.  

B.D. v. E.D., NY Slip Op 03971 (1st Dep't July 27, 2023)

Here is the decision.

A school's duty to supervise.

Schools are under a duty to supervise adequately the students in their charge, and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.  The duty of care is that of a reasonably prudent parent. Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not a proximate cause of the injury, and summary judgment in favor of a defendant charged with the duty of reasonable supervision is warranted.

K.L. v. City of New York, NY Slip Op 03914 (2d Dep't July 26, 2023)

Here is the decision.

Tort liability in favor of a non-party to the contract.

A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party. There are three exceptions to the general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. Here, the plaintiff did not allege facts in the complaint or verified bill of particulars that would establish the possible applicability of any of the three exceptions. In moving for summary judgment, the defendant is not required to demonstrate that these exceptions do not apply. The defendant's motion is granted.

Farmer v. Gazebo Contr., Inc., NY Slip Op 03849 (2d Dep't July 19, 2023)

Here is the decision.

Contract law.

A stipulation of settlement entered into by the parties in a divorce action, which is incorporated, but not merged into a judgment of divorce, constitutes a contract between the parties, subject to the principles of contract interpretation. 

Cervera v. Cervera, NY Slip Op 03846 (2d Dep't July 19, 2023)

Here is the decision.