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)

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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)

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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)

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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)

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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)

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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.