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.