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.