Contract law.

Defendants' cross-motion for summary judgment is granted. Plaintiff's argument that the parties' letter agreement gave it an exclusive right to sell is unavailing. In order to create an exclusive right to sell, a contract must clearly and expressly provide that a commission is due upon sale by the owner or exclude the owner from independently negotiating a sale. Here, the agreement lacks express language excluding a direct conveyance by defendants, nor is that a necessary implication of its terms. The agreement's language requiring defendants to "inform" plaintiff if contacted about potential transactions is insufficient to create an exclusive right to sell. Moreover, plaintiff fails to show that the agreement's tail provision, entitling plaintiff to a fee for efforts at procuring a transaction during its engagement even if the transaction were completed only after the termination of that engagement, necessarily implied that the parties intended to create an exclusive right to sell.

Plaintiff's alternative argument that it procured the investment in the equity raise that occurred is also unavailing. Plaintiff fails to establish a direct and proximate link between its efforts and the consummated deal, as opposed to an indirect and remote link.

Cantor Fitzgerald & Co. v. ObvioHealth Pte Ltd., NY Slip Op 06421 (1st Dep't December 19, 2024)

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, and shall contain reasonable justification for the failure to present such facts on the prior motion, or shall demonstrate that there has been a change in the law that would change the prior determination, pursuant to CPLR 2221[e][2], [3]. A motion to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

U.S. Bank, N.A. v. Cuencas, NY Slip Op 06373 (2d Dep't December 18, 2024)

Here is the decision.

Plaintiff's motion for leave to renew is granted. Since the plaintiff's prior motion for summary judgment had been denied without prejudice to renewal, plaintiff was not required to demonstrate a reasonable justification for its failure to submit sufficient evidence of the defendants' default on the prior motion.

Wells Fargo Bank, N.A. v. Coulstring, NY Slip Op 06374 (2d Dep't December 18, 2024)

Here is the decision.

Appellate practice.

Having consented to the order at issue, the appellant is not an aggrieved party within the meaning of CPLR 5511. The order is not appealable.

Matter of Marquise T.S. v. Shantae R.R., NY Slip Op 06316 (1st Dep't December 17, 2024)

Here is the decision.

Vacating a default.

A party seeking to vacate a default is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court. In making its determination, the court may excuse default resulting from law office failure, pursuant to CPLR 2005.

Selene Fin., L.P. v. Beltran, NY Slip Op 06230 (2d Dep't December 11, 2024)

Here is the decision.

Notices of claim.

General Municipal Law § 50-e(7) provides that all applications for leave to serve a late notice of claim "shall be accompanied by a copy of the proposed notice of claim."  However, failure to submit a copy of the proposed notice is a technical defect that a court may overlook in its discretion, pursuant to CPLR 2001. 

S.A.N. v. New York City Hous. Auth., NY Slip Op 06317 (1st Dep't December 17, 2024)

Here is the decision.

Statute of Limitations.

Under CPLR 203(d), claims and defenses that arise out of the same transaction as a claim asserted in the complaint are not barred by the Statute of Limitations, even though an independent action by defendant might have been time-barred at the time the action was commenced. Here, since both the plaintiff's claims and the defendant's counterclaims allege breaches of the employment agreements, the defendant's counterclaims arose from the same transactions and occurrences as the plaintiff's claims and, therefore, are timely.

R & G Brenner Income Tax Consultants v. Gilmartin, NY Slip Op 06229 (2d Dep't December 11, 2024)

Here is the decision.

Judgments of foreclosure and sale.

Where a judgment of foreclosure and sale is reversed on appeal, the successful appellant may seek restitution of the real property lost by the judgment, pursuant to CPLR 5015[d] and 5523. However, where the real property was sold pursuant to the judgment of foreclosure and sale, and the title is held by a purchaser in good faith and for value, recovery is limited to the value of the real property. In the absence of a stay of the sale or an outstanding notice of pendency, title of the purchaser in good faith and for value is insulated from the effects of an appellate reversal.

Puretz v. Mae, NY Slip Op 06227 (2d Dep't December 11, 2024)

Here is the decision.

Premises liability.

A property owner has a duty to maintain its premises in a reasonably safe condition, which may include the duty to warn of a dangerous condition. However, there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. In moving for summary judgment in a slip-and-fall case, the defendant has the burden of establishing, prima facie, that it neither created the hazardous condition which caused the plaintiff's injury nor had actual or constructive notice of the condition, or, alternatively, that the condition was both open and obvious and not inherently dangerous. The issue of whether a condition is open and obvious and not inherently dangerous is case-specific, and usually is a question of fact for a jury. Whether a condition is open and obvious is relevant to a plaintiff's comparative fault, but does not negate liability. Similarly, whether a defendant has provided warnings of a dangerous condition is relevant to a plaintiff's comparative fault, but does not negate liability.

Naftaliyeva v. Shoprite of Avenue I, NY Slip Op 06207 (2d Dep't December 11, 2024)

Here is the decision.

Relief from a judgment.

Pursuant to CPLR 5015(a)(1), a court may relieve a party from a judgment on the ground of excusable default, if a motion for that relief is made within one year after service of a copy of the judgment with written notice of entry. Even after expiration of the one-year limitations period set forth in CPLR 5015, a court may vacate its own judgment for sufficient reason and in the interest of substantial justice.

Deutsche Bank Natl. Trust Co. v. Vega, NY Slip Op 06025 (2d Dep't December 4, 2024)

Here is the decision.

Membership in a private association.

At issue here is a decision to temporarily revoke petitioner's general pediatrics certification. Whether a private association's determination of an individual's eligibility for membership is subject to judicial review is contingent upon a showing of economic necessity for membership and monopoly power over the profession. Here, petitioner failed to adequately allege either element. Accordingly, the petition does not sufficiently allege that respondent's determination temporarily revoking petitioner's certification constitutes state action. The cause of action alleging a violation of the right to due process is dismissed.

Matter of Wildfeuer v. American Bd. of Pediatrics, Inc., NY Slip Op 06144 (1st Dep't December 5, 2024)

Here is the decision.

Notices of pendency.

Pursuant to CPLR 6501, the filing of a notice of pendency provides constructive notice of an action in which the judgment demanded may affect the title to real property. The statute further provides that a person whose conveyance is recorded after the filing of a notice of pendency is bound by all proceedings taken in the action after such filing to the same extent as if he were a party.

Bank of Am, , N.A. v. Burton, NY Slip Op 06022 (2d Dep't December 4, 2024)

Here is the decision.

Intervention.

Pursuant to CPLR 1012(a)(3), "[u]pon timely motion, any person shall be permitted to intervene in any action . . . when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment." Additionally, the court, in its discretion, may permit a person to intervene when the person's claim or defense and the main action have a common question of law or fact. 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 intervention should be permitted where the intervenor has a real and substantial interest in the outcome of the proceedings.

Al-Rowmeim v. Alazwear, NY Slip Op 06020 (2d Dep't December 4, 2024)

Here is the decision.

Failure to move for leave to intervene constitutes a waiver of any right to participate in the litigation.

Bank of Am., N.A. v. Burton, NY Slip Op 06022 (2d Dep't December 4, 2024)

Here is the decision.

Contract law.

Defendant demonstrated that money damages are barred by a provision of the parties' commercial lease, which limits plaintiffs' damages, if any, to specific performance, injunction, or declaratory relief. Plaintiff's argument that the provision is unenforceable as against public policy is unavailing. The complaint does not allege that defendant engaged in misconduct that would constitute a willful, bad-faith breach of the lease rendering the provision unenforceable. Instead, the complaint alleges that defendant declined to reopen its business after New York State's COVID-19 in-person dining restrictions were lifted. This decision does not constitute intentional wrongdoing unrelated to any legitimate economic self-interest which would be required to find the provision unenforceable.

2M Hospitality Group, LLC v. Sahara Plaza, LLC, NY Slip Op 06003 (1st Dep't December 3, 2024)

Here is the decision.

Liability for sidewalk defects.

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner. Administrative Code § 7-210(a) imposes a duty upon owners to maintain the sidewalk abutting their property in a reasonably safe condition. On a motion for summary judgment, a defendant property owner is required to do more than simply demonstrate that the alleged defect was on another landowner's property. The property owner must establish that it maintained the portion of the sidewalk abutting its own property in a reasonably safe condition or that any failure to do so was not a proximate cause of the plaintiff's injuries.

Santiago v. 527 Grand, LLC, NY Slip Op 05999 (2d Dep't November 27, 2024)

Here is the decision.

Discovery.

Pursuant to CPLR 3101(a), "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The words "material and necessary" must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. However, a party is not entitled to unlimited, uncontrolled, and unfettered disclosure. The essential test is usefulness and reason. It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims. Unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy. The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are matters within the sound discretion of the trial court.

Smith-Percival v. MTA Bus Co., NY Slip Op 06000 (2d Dep't November 27, 2024)

Here is the decision.

The Dead Man's Statute.

Pursuant to CPLR 4519, "[u]pon the trial of an action . . . , a party or a person interested in the event . . . shall not be examined as a witness in his own behalf or interest . . . against the executor, administrator or survivor of a deceased person or the committee of a person with a mental illness . . . concerning a personal transaction or communication between the witness and the deceased person or person with a mental illness, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the person with a mental illness or deceased person is given in evidence, concerning the same transaction or communication." Generally, evidence that would be inadmissible at trial under the Dead Man's Statute may not be relied upon to establish a prima facie entitlement to judgment as a matter of law.

As parties to this medical malpractice action, the two individual defendants are thereby interested in the outcome of this action. Consequently, their deposition testimony and affidavits that were largely based on their communications with the decedent could not be considered as evidence in support of the defendants' motion for summary judgment. However, the deposition testimony of the registered nurse, who rendered certain care and spoke to the decedent, was admissible, as the nurse is not an interested party within the meaning of the Dead Man's Statute.

Weber v. Sharma, NY Slip Op 06001 (2d Dep't November 27, 2024)

Here is the decision.

December 7, 1941

An action to foreclose a mortgage.

An action to foreclose a mortgage is subject to a six-year statute of limitations, pursuant to CPLR 213[4]. Even if the mortgage is payable in installments, once a noteholder elects to accelerate the debt, the entire amount is due and the statute of limitations begins to run on the entire deb. In order to be valid, an election to accelerate must be made by an unequivocal overt act that discloses the noteholder's choice, such as the filing of a verified complaint seeking foreclosure and containing a sworn statement that the noteholder is demanding repayment of the entire outstanding debt. Here, the fact that the decedent died prior to commencement of the foreclosure action did not revoke or invalidate, or otherwise destroy, the express invocation of the contractual election to accelerate the debt.

Wilmington Sav. Fund Socy., FSB v. Burgress, NY Slip Op 06002 (2d Dep't November 27, 2024)

Here is the decision.

The admissibility of expert opinions.

Defendants' motion to exclude the opinions by plaintiffs' general causation experts is granted, as plaintiffs failed to sustain their burden of showing that their experts' theory of causation is generally accepted in the relevant scientific community.

Wholey v. Amgen, Inc., NY Slip Op 05910 (1st Dep't November 26, 2024)

Here is the decision.

Defamation.

The elements of a cause of action for defamation are: (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published to a third party without privilege or authorization, (3) amounting to fault as judged by a negligence standard, and (4) either causing special harm or constituting defamation per se. CPLR 3016(a) provides that, "[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint."  Compliance with CPLR 3016(a) is strictly enforced.

Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action. Accordingly, an expression of pure opinion is not actionable, no matter how vituperative or unreasonable it may be. In distinguishing between statements of fact and those of pure opinion, it is necessary to consider the writing as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff.

Tsamasiros v. Jones, NY Slip Op 05814 (2d Dep't November 20, 2024)

Here is the decision.

Medical malpractice and punitive damages.

Punitive damages are recoverable in a medical malpractice action only where the defendant's conduct evinces a high degree of moral culpability or willful or wanton negligence or recklessness. The plaintiff may recover punitive damages for a medical professional's act of altering or destroying medical records in an effort to evade potential medical malpractice liability.

Woehrle v. Buono, NY Slip Op 05815 (2d Dep''t November 20, 2024)

Here is the decision.

Appellate practice.

The trial transcript is a necessary element of an appellate record, pursuant to CPLR 5526. Here, defendant's failure to include the trial transcript in the record on appeal requires dismissal of the appeal.

Lewis v. Thomas, NY Slip Op 05832 (1st Dep't November 21, 2024)

Here is the decision.

Change of venue.

The Appellate Division affirmed the denial of defendants' motion to change venue from New York County to Onondaga County, based upon plaintiff's showing of compelling circumstances sufficient to override the mandate of CPLR 504, while citing CPLR 510[3]. Plaintiff provided evidence that travel to Onondaga County would be a hardship for him and his witness, his treating psychiatrist, based on his limited financial means and the adverse effect it would have on his mental health.

Hicks v. City of Syracuse, NY Slip Op 05831 (1st Dep't November 21, 2024)

Here is the decision.

Domestic violence.

The standard for a court's finding of neglect based on domestic violence against a child's mother is preponderance of the evidence, pursuant to Family Court Act §§ 1012[e][iii].

Matter of A.A. (Carlos B.), NY Slip Op 05822 (1st Dep't November 21, 2024)

Here is the decision.

Attorneys' fees.

While Business Corporations Law § 626(e) provides that a successful plaintiff in a shareholders' derivative action may recoup legal expenses and attorneys' fees from the proceeds of a judgment, compromise, or settlement in favor of the corporation, it does not authorize the imposition of such expenses on the losing party. Here, the cause of action for attorneys' fees is dismissed.

Schmidt v. Board of Directors of Duane Owners, Inc., NY Slip Op 05778 (1st Dep't November 19, 2024)

Here is the decision.

Court holiday.

Appellate practice.

There is no appeal from a court's comments that are dicta.

Matter of Johnson, NY Slip Op 05768 (1st Dep't November 19, 2024)

Here is the decision.

Motions for summary judgment.

While a plaintiff is not required to establish freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a 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 and culpable conduct on the part of the plaintiff.

Houston v. McQuiller, NY Slip Op 05594 (2d Dep't November 13, 2024)

Here is the decision.

Appellate practice.

While the motion court purportedly denied the motion for reargument, it effectively granted the motion by addressing the merits. Accordingly, the order is appealable, pursuant to CPLR 5701[a][2][viii].

Pierre v. City of New York, NY Slip Op 05652 (1st Dep't November 14, 2024)

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.

Myung Ja Wang. v. New York City Tr. Auth., NY Slip Op 05591 (2d Dep't November 13, 2024)

Here is the decision.

Summary judgment.

A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated, pursuant to CPLR 3212[f]. This is especially so where the motion for summary judgment was made prior to the parties conducting depositions.

Kharyshyn v. West End 82, LLC, NY Slip Op 05586 (2d Dep't November 13, 2024)

Here is the decision.

Appellate practice.

Plaintiff's appeal of the judgment does not bring up for review the motion court's prior order, granting summary judgment for the individual defendants, as it was a final order that dismissed all claims asserted against them as guarantors of the tenant's lease obligations. The subsequent entry of judgment was a mere ministerial act that did not excuse plaintiff's failure to file a notice of appeal of the summary judgment order.

Roc-Le Triomphe Assoc., LLC v. DeSouza, NY Slip Op 05644 (1st Dep't November 14, 2024)

Here is the decision.

The single motion rule.

The motion to dismiss did not violate the single motion rule, pursuant to CPLR 3211[e], because defendants' prior motion to dismiss was not decided on the merits.

2497 Realty Corp. v. Fuertes, NY Slip Op 05624 (1st Dep't November 14, 2024)

Here is the decision.

Motions to dismiss.

Pursuant to CPLR 3211(a)(2), a party may move to dismiss a cause of action on the ground that the court lacks subject matter jurisdiction. The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is a substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs.  However, civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution. Here, the defendants failed to demonstrate that the causes of action alleging negligence and negligent hiring, retention, and supervision insofar as asserted against them cannot be determined solely upon the application of neutral principles of law, without reference to religious principles.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must 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. Pursuant to CPLR 3211(a)(1), dismissal is warranted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Escobar v. Segunda Iglesia Pentecostal Juan 3:16 Asamblea de Dios, NY Slip Op 05583 (2d Dep't November 13, 2024)

Here is the decision.

Extension of time to file a note of issue.

The motion court providently exercised its discretion in denying defendant's motion for a further extension of the deadline for filing the note of issue, taking into account the length of time the action had been pending, the multiple extensions that had already been granted, and the need to avoid undue delay. Notably, after the Appellate Division granted the parties an additional 60 days to complete discovery, the motion court granted another extension of about five months to complete discovery and file the note of issue. Although the motion court's order marked that deadline as "final" and stated that no further extensions would be granted without a showing that "formal efforts" had been made to compel outstanding discovery from third parties, defendant canceled a scheduled deposition of third-party witnesses and did not move to compel discovery from them.

As to the motion to vacate the note of issue, defendant failed to show that any unusual or unanticipated circumstances requiring additional discovery developed after the filing of the note of issue, pursuant to 22 NYCRR 202.21[d].

361 Broadway Assoc. Holdings, LLC v. Foundations Group I, Inc., NY Slip Op 05550 (1st Dep't November 12, 2024)

Here is the decision.

Licensing agreements.

Licensing agreements that provide for stipulated guaranteed minimum royalty payments that accelerate on breach are enforceable as written and for the amount set forth, without regard to mitigation, setoff, or other post-breach developments.

AL Infinity LLC v Innovative Concepts & Design, LLC, NY Slip Op 05475 (1st Dep't November 7, 2024)

Here is the decision.

Foreclosure actions.

Pursuant to RPAPL 1311 (1) the necessary defendants to a foreclosure action are "[e]very person having an estate or interest in possession, or otherwise, in the property as tenant in fee, for life, by the curtesy, or for years, and every person entitled to the reversion, remainder, or inheritance of the real property, or of any interest therein or undivided share thereof, after the determination of a particular estate therein." Where a property owner dies intestate, title to real property is automatically vested in the decedent's distributees.

Wilmington Sav. Fund Socy. v. Jsang Kei Lau, NY Slip Op 05504 (1st Dep't November 6, 2024)

Here is the decision.

A vehicle owner's vicarious liability.

Vehicle and Traffic Law § 388(1) provides that, with the exception of commercial lessors of motor vehicles, which are exempt from vicarious liability under federal law, the owner of a motor vehicle is liable for the negligence of one who operates the vehicle with the owner's express or implied consent. The statute creates a presumption that the driver was using the vehicle with the owner's express or implied permission, which may be rebutted only by substantial evidence sufficient to show that the vehicle was not operated with the owner's consent.  Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use. However, the uncontradicted testimony of a vehicle owner or a vehicle owner's employee that a vehicle was operated without the owner's permission does not, by itself, overcome the statutory presumption of permissive use.

Dombalic v. Cornelius, NY Slip Op 05434 (2d Dep't November 6, 2024)

Here is the decision.

Service of process.

Defendant's motion to dismiss the complaint for lack of personal jurisdiction is denied. Plaintiff landlord's properly executed affidavit of service constituted prima facie evidence of proper service of the summons and complaint upon defendant-lease guarantor. The affidavit of service attests to attempted personal service upon defendant on three separate dates and times at a nightclub business address that defendant designated for notice purposes in connection with his execution of the lease guaranty. On the fourth service attempt, the process server resorted to affix and mail service, pursuant to CPLR 308[4].

Defendant argues that because of the Covid lockdown and the nightclub's temporary closure, the nightclub address could no longer be deemed his actual place of business, and that service at that location did not afford him with reasonable notice of the action against him for purposes of acquiring personal jurisdiction. However, because defendant designated the nightclub address as his business address for notice purposes under the guaranty, he may not now reasonably claim he was not properly served. In addition, defendant had a contractual duty under the guaranty to keep the landlord apprised of a current address for receipt of notices in connection with the guaranty, and he never changed the address.

Accordingly, defendant's mere denial of receipt of process fails to rebut the presumption of proper service created by the affidavit of service.

Amcojor Realty Corp. v. Butter Mgt. LLC, NY Slip Op 05476 (1st Dep't November 7, 2024)

Here is the decision.

Striking a pleading.

The drastic remedy of striking a pleading is not warranted where the motion court does not find a long-standing pattern of willful or contumacious failure to comply with discovery demands or orders, pursuant to CPLR 3126.

Farrell Limousine Serv. LLC v. Macro Consultants, LLC, NY Slip Op 05402 (1st Dep't October 31, 2024)

Here is the decision.

Appellate practice.

The plaintiff contends that the submissions of the building defendants and the purchaser defendants were insufficient to demonstrate that the building defendants complied with various notice requirements prior to the auction transferring the plaintiff's proprietary lease and shares of stock in the subject apartment. This contention, however, was not raised in opposition to the separate motions of the building defendants and the purchaser defendants. Instead, the plaintiff improperly raised this contention for the first time on appeal, and, therefore, it is not properly before the Appellate Division.

Cobb v. 1710 Carroll Owners Corp., NY Slip Op 05324 (2d Dep't October 20, 2024)

Here is the decision.

Contract law.

Defendant's motion for summary judgment with respect to plaintiff's breach of contract cause of action is denied, as plaintiff sufficiently raised issues of fact with respect to damages. In discovery, plaintiff provided interrogatory responses and produced admissible documentary and testimonial evidence regarding the contract price, plaintiff's estimated costs of performance, and defendant's non-payment. In addition plaintiff's director of business development, testified at deposition that the proffered documents were generated in the ordinary course of business, and he gave details regarding the project costs contained in the documents. Since the parties entered into a fixed-price construction contract where defendant allegedly prevented performance, plaintiff adequately proffered evidence raising a factual issue about damages.

Adler Windows, Inc. v. Freidheim, NY Slip Op 05396 (1st Dep't October 31, 2024)

Here is the decision.

Court holiday.

Sidewalk defects.

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner. That section imposes a non-delegable duty on a property owner to maintain and repair the sidewalk abutting its property. Generally, the issue of whether a dangerous or defective condition exists on a property depends on the facts of each case and is a question of fact for the jury. However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub a toe, or trip.  In other words, if a defect is so slight that no careful or prudent person would reasonably anticipate any danger from it, and yet an accident occurs that is traceable to the defect, there is no liability. A defendant seeking dismissal of a complaint on the basis that an alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact. There is no minimal dimension test or per se rule that the condition must be of a certain height or depth in order to be actionable. Instead, in determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect along with the time, place, and circumstance of the injury. This analysis may include consideration of the weather and lighting conditions in the area, the plaintiff's familiarity therewith, the extent to which the area may have been crowded, and whether the alleged defect was otherwise obscured or concealed at the time of the accident. Photographs that are acknowledged to fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable.

Brothers v. Nisan Maintenance Corp., NY Slip Op 05323 (2d Dep't October 30, 2024)

Here is the decision.

Rear-end collisions.

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a non-negligent explanation for the collision to rebut the inference of negligence. Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation for the collision. Thus, in a three-vehicle chain-collision accident, the defendant operator/owner of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle.

Beltre v. Menegos, NY Slip Op 05322 (2d Dep't October 30, 2024)

Here is the decision.

Negligence actions.

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.  In order to be entitled to summary judgment on the issue of liability, a plaintiff does not have the burden of establishing the absence of his own comparative negligence. However, the issue of a plaintiff's comparative negligence may be decided in the context of a plaintiff's motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of an affirmative defense alleging comparative negligence.

Arnold v. Shepitka, NY Slip Op 05321 (2d Dep't October 30 2024)

Here is the decision.

Bankruptcy.

Upon the filing of a voluntary bankruptcy petition, all property which a debtor owns, including claims and causes of action, vests in the bankruptcy estate. Thus, when plaintiff filed for bankruptcy, her claims against defendants became property of the bankruptcy estate and only the trustee had standing to commence and prosecute the claims in the instant action.

Since this action was commenced by a party without standing to sue, dismissal is required. This flaw cannot be cured by a simple amendment substituting the trustee in place and stead of plaintiff debtor. The dismissal, however, is without prejudice, and the parties' arguments concerning CPLR 205(a) are premature until such a time as the trustee commences an action.

Messer v. Hughes, NY Slip Op 05309 (1st Dep't October 29, 2024)

Here is the decision.

Premature summary judgment motions.

While a party is entitled to a reasonable opportunity to conduct discovery in advance of a summary judgment determination, a party contending 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 knowledge and control of the movant.

Woodham v. New York City Transp. Auth., NY Slip Op 05239 (2d Dep't October 23, 2024)

Here is the decision.

Court holiday.

The efficacy of affidavits.

Factual affidavits do not constitute documentary evidence within the meaning of CPLR 3211(a)(1). Where the affiant offers no basis to find personal knowledge of the facts stated therein, the affidavit is without probative value.

Juman v. Cape Church Assoc., LLC, NY Slip Op 05281 (1st Dep't October 24, 2024)

Here is the decision.

Premises liability.

An out-of-possession landlord is not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or a course of conduct by the landlord giving rise to a duty.

Greco v, St. Bridget's Church at Westbury, Queens Co., NY Slip Op 05203 (2d Dep't October 23, 2024)

Here is the decision.

Vacating a default judgment.

Plaintiff's motion to vacate a default judgment dismissing the complaint is denied.

Notwithstanding plaintiff's showing of merit, he failed to demonstrate a reasonable excuse for failing to oppose the City's motion to dismis. While plaintiff's counsel adequately explained the failure to respond to the hard copy of the City's motion, counsel failed to explain why he did not e-file a notice of appearance, thereby ensuring he would have received notice of the motion to dismiss via the court's e-filing system, until November 2021, well after he informed the City of his representation of plaintiff. This occurred after he received plaintiff's file, which he suggested he needed to properly address this case.

Moreover, counsel's failure to respond to the City's motion was part of a larger pattern of neglect. Plaintiff has not explained why his second and third counsel did not fully comply with a September 3, 2020 discovery order until March 2023, when current counsel filed his motion to vacate. Plaintiff also has not explained why, after his current counsel learned of the March 2022 order of dismissal and failed to reach plaintiff by phone, counsel did not notify plaintiff of the order by mail or seek to vacate the default until almost a year after notice of entry of the order.

Bey v. City of New York, NY Slip Op 05274 (1st Dep't October 24, 2024)

Here is the decision.

Claims of unfair competition, tortious interference, and defamation.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true, and the plaintiff is to be afforded every favorable inference. However, allegations consisting of bare legal conclusions and factual claims that are inherently incredible are not entitled to a favorable inference. Further, dismissal pursuant to CPLR 3211(a)(7) is warranted when the plaintiff fails to assert facts in support of an element of the claim or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.

Here, the plaintiff failed to assert facts in support of the elements of an unfair competition cause of action. The plaintiff did not allege any facts that could be construed as palming off or misappropriation, either one of which is a required element of an unfair competition cause of action. Dismissed.

Similarly, the plaintiff failed to assert facts to support the elements of the cause of action alleging tortious interference with contract. The cause of action requires allegations of the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third-party's breach of the contract without justification, actual breach of the contract, and damages resulting therefrom. The plaintiff failed to allege the existence of any third-party agreement. Dismissed.

The plaintiff also failed to state a cause of action alleging tortious interference with business relations. In order to prevail on the claim, a plaintiff must prove: (1) that it had a business relationship with a third party; (2) that the defendant knew of that relationship and intentionally interfered with it; (3) that the defendant acted solely out of malice or used improper or illegal means that amounted to a crime or independent tort; and (4) that the defendant's interference caused injury to the relationship with the third party. The plaintiff failed to allege facts to indicate that the defendants acted solely out of malice and/or used improper or illegal means in removing her from stroke rounds. Dismissed. 

The plaintiff also failed to state a defamation cause of action. The plaintiff's allegations were insufficient in that they failed to allege the particular words complained of, pursuant to CPLR 3016[a], the time, place, and manner of publication, or the person or persons to whom the statements were allegedly made. Dismissed.

Delanerolle v. St Catherine of Sienna Med. Ctr., NY Slip Op 05201 (2d Dep't October 23, 2024)

Here is the decision.

Legal malpractice.

In order to sustain a cause of action for legal malpractice, the plaintiff must show that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. An attorney's conduct or inaction is the proximate cause of a plaintiff's damages if but for the attorney's negligence the plaintiff would have succeeded on the merits of the underlying action. or would not have sustained 'actual and ascertainable damages. A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing that he did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, or that the claimed departure did not proximately cause the plaintiff to sustain damages.

D'Angelo v. Kujawski, NY Slip Op 05200 (2d Dep't October 23, 2024)

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 . . . of an action." The phrase "material and necessary" should be interpreted liberally, and the test is one of usefulness and reason. It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims, and unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy. The supervision of discovery and the setting of reasonable terms and conditions for disclosure are within the sound discretion of the trial court.

The Supreme Court providently exercised its discretion in granting the subject branch of the plaintiff's prior motion to the extent of directing the defendants to produce documents related to all gap-related studies, reports, accidents, and/or injuries occurring anywhere within the New York City subway system for three years prior to the date of the accident at issue. The plaintiff established that access to these documents may yield information material and necessary to the prosecution of the action, including information related to the defendants' notice of the alleged dangerous condition that caused her accident and their duty to the plaintiff.

Chacon v. New York City Tr. Auth., NY Slip Op 05199 (2d Dep't October 23, 2024)

Here is the decision.

Motions to dismiss.

A motion to dismiss pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations and conclusively establishes a defense to the claims as a matter of law. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case. In order to be considered documentary, the evidence must be unambiguous and of undisputed authenticity. Letters, emails, and affidavits are not documentary evidence. An affidavit is not documentary evidence because its contents can be controverted by other evidence, such as another affidavit.

Cajahuanca v. City of New York, NY Slip Op 05198 (2d Dep't October 23, 2024)

Here is the decision.

Motions to renew.

The Appellate Division determined that the Supreme Court providently exercised its discretion in denying petitioner's renewal motion, pursuant to CPLR 2221[e][2].  Petitioner failed to support its application with new facts or information which could not have been readily and with due diligence made part of the original motion, and the court properly concluded that petitioner's submissions would not change its prior determination.

Matter of Barons Media, LLC v. Shapiro Legal Group, PLLC, NY Slip Op 05301 (1st Dep't October 24, 2024)

Here is the decision.

Contract law.

Buyer made a prima facie showing that it was entitled to judgment as a matter of law on seller's claim for reformation of the parties' real estate purchase and sale agreement based on a theory of either mutual mistake or a scrivener's error. Reformation based upon a scrivener's error requires proof of a prior agreement which, when subsequently reduced to writing, fails to accurately reflect the prior agreement. Here, there is no evidence of a prior oral agreement inconsistent with the written documents. Indeed, seller's representative testified that there was no oral agreement. Moreover, the real estate transfer documents, as well as the contract, all of which were prepared by seller's counsel, repeatedly and consistently included the description, by address, metes and bounds, and block and lot number, of the vacant lot that is the subject of the reformation action. This is inconsistent with a claim that the inclusion of the vacant lot was an inadvertent or isolated scrivener's error.

A claim for reformation based on mutual mistake must be supported by clear and convincing evidence that the agreement did not accurately express the parties' intention. A mutual mistake must exist at the time the agreement is signed. The evidence offered by seller - that a year before the closing, the parties did not intend to include the vacant lot in the transaction - substantially predated the parties' final agreements. Both buyer and its counsel affirmed that, by the time of the closing, the vacant lot was included in the sale. Their understanding was supported by the deed, which included the vacant lot, other closing documents drafted by the seller, and the fact that the vacant lot and the two adjoining properties included in the purchase were all subject to the same regulatory agreement with the City of New York. Furthermore, after the closing, buyer, not seller, paid all the carrying costs of the property, including taxes. In addition, seller waited three years to seek reformation, which is persuasive evidence of the agreed intention of the parties.

ACP Hous. Assoc., L.P. v. ABJ Milano, LLC, NY Slip Op 05272 (1st Dep't October 24, 2024)

Here is the decision.

Service on a foreign corporation.

Pursuant to CPLR 311(a)(1), service upon a foreign corporation shall be made by delivering the summons "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service."  In addition, service may be made upon someone whom the corporation cloaks with authority. The burden of proving that personal jurisdiction has been acquired over a defendant rests with the plaintiff. The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void.

Bold Broadcasting, LLC v. Wawaloam Reservation, Inc., NY Slip Op 05196 (2d Dep't October 23, 2024)

Here is the decision.

Standing in a mortgage foreclosure action.

The subject note, and the allonges attached to each note, which were dated and specifically endorsed to each respective assignee, were sufficient to establish plaintiff's standing to foreclose.

Defendants, in turn, failed to raise a triable issue of fact as to standing. Uniform Commercial Code § 3-202(2) provides that "[a]n endorsement must be written by or on behalf of the holder on the instrument or on a paper so firmly affixed thereto as to become a part thereof." Contrary to defendants' contention, counsel's sworn affidavit of regularity, in which he averred that upon receipt of the original trust file, the file contained the original note and mortgage, that the original allonges were stapled to the original note, and the original trust file containing the original note and mortgage remained in counsel's possession and would be provided upon request, was sufficient to meet this burden.

U.S. Bank N.A. v. Mave Hotel Invs. LLC, NY Slip Op 05195 (1st Dep't October 22, 2024)

Here is the decision.

Accelerated judgment.

CPLR 3213 provides a means of obtaining an accelerated judgment where a defendant's liability is premised upon an instrument for the payment of money only, such as an unconditional guaranty. In order to recover on a guaranty, a plaintiff must establish that payment on the underlying debt was due.  A defendant can defeat a CPLR 3213 motion by offering evidentiary proof sufficient to raise a triable issue of fact. Averments merely stating conclusions of fact or law are insufficient to defeat summary judgment.

Whitestone Plaza, LLC v. You Lin Shen, NY Slip Op 05129 (2d Dep't October 16, 2024)

Here is the decision.

Service of process.

The individual defendant - a partner of the defendant law firm - was properly served, and, thus, the law firm was properly served. While the process server did not reach the individual defendant's actual place of business, pursuant to CPLR 308[2], because the building where defendants are located did not allow the process server to go to the defendant firm's floor, the building's concierge told the process server to deliver the summons to the "Building Mailroom Clerk." Under these circumstances the outer bounds of the individual defendant's actual place of business is deemed to extend to the location at which the process server was stopped.

Nath v. Chemtob Moss Forman & Beyda, LLP, NY Slip 05061 (1st Dep't October 15, 2024)

Here is the decision.

The admissibility of business records.

Although the foundation for admission of a business record usually is provided by the testimony of the custodian, the author, or some other witness familiar with the practices and procedures of the particular business, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Without the introduction of the records themselves, a witness's testimony as to the contents of the records is inadmissible hearsay.

Bank of N.Y. v. Levy, NY Slip Op 05085 (2d Dep't October 16, 2024)

Here is the decision.

Appellate practice.

Defendant's appeal is based on the issue of standing. While that defense is contained in her answer, defendant did not raise the issue in any of the numerous dispositive motions that she made in Supreme Court. Accordingly, the Appellate Division declines to reach the issue for the first time on appeal.

U.S. Bank Trust, N.A. v. Stewart, NY Slip Op 05150 (1st Dep't October 17, 2024)

Here is the decision.

Quasi-contractual claims.

Because the subject matter of the loan at issue and the terms of its repayment are governed by a promissory note - a written agreement whose validity and enforceability is not in dispute - quasi-contractual claims based on the same subject matter will not lie, even against a nonparty to the promissory note.

A.N.L.Y.H. Invs. LP v. JDS Principal Highline LLC, NY Slip Op 05133 (1st Dep't October 17, 2024)

Here is the decision.

A motion to preclude witnesses at trial.

The trial court providently exercised its discretion in precluding seven witnesses listed on plaintiff's witness list from testifying at trial. Plaintiff exhibited a lack of diligence and noncompliance with court orders requiring him to respond to discovery demands, including interrogatories asking him to identify witnesses. Further, plaintiff did not provide a reasonable explanation for his failure to disclose those witnesses earlier in this 10-year-old litigation.

Gerasimowicz  v. Delis, NY Slip Op 05050 (1st Dep't October 15, 2024)

Here is the decision.

Motions to dismiss.

Under CPLR 3211(a)(1), a dismissal is warranted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. On a motion pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7) and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal shall not be granted. On a motion pursuant to CPLR 3211(a)(5) based on the statute of frauds, the court is required to accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference.

374-76 Prospect Place Tenants Assn., Inc. v. City of New York, NY Slip Op 05082 (2d Dep't October 16, 2024)

Here is the decision.

Vacating a default.

Defendants' motion to vacate the default judgment is granted in the interest of justice. Although defendants have a history of defaults and delays, many were readily excusable and the motion court was entitled, in its discretion, to accept their proffered excuse of law office failure, especially considering the stipulation to adjourn the motion for a default judgment. In affirming, the Appellate Division noted the policy of deciding actions on the merits, the existence of potentially meritorious defenses, the extreme prejudice to defendants if vacatur is denied, the comparatively lesser prejudice to be suffered by plaintiff if the default is vacated, and the court's efforts to mitigate such prejudice by awarding plaintiff a trial preference and monetary sanctions, pursuant to CPLR 2005.

Walton v. Perez, NY Slip Op 05081 (1st Dep't October 15, 2024)

Here is the decision.

Dismissal by the court.

A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met. Here, the Supreme Court failed to serve a written demand upon the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days of receipt of the demand, pursuant to CPLR 3216[b][3]. Since at least one precondition set forth in CPLR 3216 was not met, the court was without power to direct dismissal of the complaint pursuant to that statute.

Pursuant to 22 NYCRR 202.27, a court has discretion to dismiss an action where a plaintiff fails to appear at any scheduled call of a calendar or at any conference. In this case, however, the court attorney referee did not recommend dismissal of the complaint based upon a failure to appear at a conference, but, rather, for failure to move for an order of reference by a date certain without good cause shown. Thus, the dismissal order, which confirmed the report of the court attorney referee, did not direct dismissal of the complaint based upon a default in appearing at a scheduled conference or calendar call, and 22 NYCRR 202.27 could not have provided the basis for dismissal of the complaint.

In addition, a court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances warrant dismissal. Here, the plaintiff's failure to comply with a court conference order directing the plaintiff to move for an order of reference was not a sufficient ground upon which to direct dismissal of the complaint.

Bank of Am., N.A. v. Banu, NY Slip Op 04940 (2d Dep't October 9, 2024)

Here is the decision.

Appellate practice.

Plaintiff's motion for sanctions was granted on default and, as such, was non-appealable, pursuant to CPLR 5511. Defendant's one-page email to plaintiff's counsel discussing various housekeeping issues, with a mention of the pending discovery dispute, which was never filed, did not constitute opposition to the motion for sanctions. In addition, it did it comply with the court's order to respond to the motion.

LW Holdco V, LLC v. Puls, NY Slip Op 05026 (1st Dep't October 10, 2024)

Here is the decision.

Court holiday.

Contract law.

In order to invoke the doctrine of frustration of purpose, the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense. Frustration of purpose is found where there is a change in circumstances making one party's performance virtually worthless to the other, thus frustrating that party's purpose in making the contract. A contractual party cannot rely on the failure of another to perform a condition precedent where that party has frustrated or prevented the occurrence of the condition.

Matter of Fein v. Langer, NY Slip Op 04906 (1st Dep't October 8, 2024)

Here is the decision.

Extensions of time to answer.

A motion pursuant to CPLR 3012(d) to extend the time to answer a complaint requires the movant to demonstrate both a reasonable excuse for its delay and a potentially meritorious defense to the claims to which it is responding. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. In making that discretionary determination, the court should consider relevant 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.

209 Barbey St. Trust v. Scotland, NY Slip Op 04938 (2d Dep't October 9, 2024)

Here is the decision.

Spoliation.

On a motion for spoliation sanctions involving the destruction of electronic evidence, the party seeking sanctions must establish that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a culpable state of mind;  and (3) the destroyed evidence was relevant to the moving party's claim or defense.

Here, Supreme Court providently exercised its discretion in imposing sanctions against plaintiff on the ground that plaintiff's majority shareholder had deliberately deleted relevant emails. At a hearing, defendant showed that the shareholder had deleted the emails after June 7, 2022, the date on which plaintiff had sent a prelitigation notice of default and demand for payment, threatening imminent litigation. The evidence at the hearing further showed that the emails were permanently removed from the hard drive by taking affirmative steps to delete them from the deleted items folder or recycle bin. This evidence was sufficient to demonstrate that the emails were deleted deliberately.

Coney Is. Auto Holdings, Corp. v. Parts Auth., LLC, NY Slip Op 04900 (1st Dep't October 8, 2024)

Here is the decision.

Discovery sanctions.

Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed. The nature and degree of the penalty is a matter within the discretion of the motion court.  However, the Appellate Division is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse.

Public policy strongly favors the resolution of actions on the merits whenever possible.  Thus, before a court invokes the remedy of precluding evidence, there must be a clear showing that the failure to comply with discovery was willful and contumacious. The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders, and the absence of any reasonable excuse for its failures.

Gibson v. Delemos, NY Slip Op 04761 (2d Dep't October 2, 2024)

Here is the decision.

Rescission.

A unilateral mistake can be the basis for rescission if failing to rescind would result in unjust enrichment of one party at the expense of the other, and the parties can be returned to the status quo ante without prejudice.

Gaetano v. 1210 Troy Schenectady Rd., LLC, NY Slip Op 04760 (2d Dep't October 2, 2024)

Here is the decision.

Adding a party.

Pursuant to CPLR 1003, "[p]arties may be added at any stage of [an] action by leave of court or by stipulation of all parties who have appeared." CPLR 3025(b) provides that "[a] party may amend [its] pleading . . . at any time by leave of court or by stipulation of all parties." A plaintiff's failure to comply with CPLR 1003 when attempting to add a new defendant is a jurisdictional defect, and an amended complaint that is not filed in accordance with CPLR 1003 and 3025 is a legal nullity.

Braylovskaya v. Skazka Rest., NY Slip Op 04756 (2d Dep't October 2, 2024)

Here is the decision.

Suing the Housing Authority.

Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to commencing an action against NYCHA. Pursuant to General Municipal Law § 50-e(5), upon application, the Supreme Court, in its discretion, may extend the time to serve a notice of claim upon a public corporation as required by General Municipal Law § 50-e(1).

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, the court must consider all relevant circumstances, including whether: (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter; (2) the injured child was an infant at the time the claim arose, and, if so, whether there was a nexus between the infancy and the failure to serve a timely notice of claim; (3) the plaintiff demonstrated a reasonable excuse for the failure to serve a timely notice of claim; and (4) the public corporation was substantially prejudiced by the delay in its ability to maintain a defense on the merits. No single factor is determinative, although it is generally recognized that the question of whether the public corporation timely acquired actual knowledge is of great importance. 

In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory. Here, the record did not demonstrate that NYCHA acquired timely, actual knowledge of the essential facts constituting the claim that the infant plaintiff sustained personal injuries as a result of NYCHA's negligence. Moreover, the plaintiffs failed to provide a reasonable excuse for their failure to serve a timely notice of claim. 

J.B. v. City of New York, NY Slip Op 04755 (2d Dep't October 2, 2024)

Here is the decision.

Indemnification.

A finding of negligence nullifies any common-law indemnity claim.

Ace Am. Ins. Co. v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 04800 (1st Dep't October 3, 2024)

Here is the decision.

Summary judgment motions.

The non-movant's mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to warrant denial of the motion.

Carmona v. Preston, NY Slip Op 04757 (2d Dep't October 2, 2024)

Here is the decision.

Appellate practice.

To the extent that plaintiff seeks affirmative relief, such as sanctions and striking of defendants' answer, in his opposition to defendants' motion to compel, the Appellate Division declines to grant that relief, as plaintiff did not cross-move for it before the motion court.  Similarly, the Appellate Division declines plaintiff's request to vacate prior orders, as plaintiff did not take an appeal from them.

Schwartz v. Mount Sinai Hosp., NY Slip Op 04750 (1st Dep't October 4, 2024)

Here is the decision.

Motions to dismiss.

In order to prevail on a motion pursuant to CPLR 3211(a)(1), the movant's evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. Contracts and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence. 

When reviewing a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. 

Plymouth Capital, LLC v. Montage Fin. Group, Inc., NY Slip Op 04583 (2d Dep't September 25, 2024)

Here is the decision.

Account stated.

An account stated claim is an account balanced and rendered, with an assent to the balance, express or implied, so that the demand is essentially the same as if a promissory note had been given for the balance. A defendant's receipt and retention of invoices seeking payment for goods or services rendered, without objection within a reasonable time, gives rise to an actionable claim.

TH Fashion Ltd. v. Vince Holding Corp., NY Slip Op 04630 (1st Dep't September 26, 2024)

Here is the decision.

Arbitration.

While American Arbitration Association rules delegate to the arbitrator the issue of whether a particular dispute is subject to an arbitration agreement, it is for the courts to determine, in the first instance, whether the parties have entered into a binding agreement to arbitrate.

Matter of Whythe Berry, LLC v. Goldman, NY Slip Op 04632 (1st Dep't September 26, 2024)

Here is the decision.

Contract law.

The elements of a cause of action for tortious interference with a contract are (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procurement of a third-party's breach of that contract without justification; and (4) damages. The plaintiff must further allege facts that are sufficient to show that the contract would not have been breached but for the defendant's conduct.

Plymouth Capital, LLC v. Montage Fin. Group, Inc., NY Slip Op 04583 (2d Dep't September 25, 2024)

Here is the decision.

Warranty of habitability.

The breach of the warranty of habitability counterclaim was dismissed because it only applies to a tenant living in the apartment, not a commercial tenant like defendants.

20 Broad St. Owner, LLC v. Sonder USA, Inc., NY Slip Op 04591 (1st Dep't September 26, 2024)

Here is the decision.

Vacatur of a default.

The Appellate Division affirmed the denial of defendants motion to vacate the default judgment.Contrary to defendants' contention that the action should be dismissed under CPLR 306-b, the summons and complaint were timely served considering the executive orders tolling the time limit for service of process during the COVID-19 pandemic.

Supreme Court providently declined to vacate the default under CPLR 317 where service of process on corporate defendants was properly made by means of service upon the Secretary of State, and defendants failed to demonstrate lack of actual notice of the action. Defendants' sworn admission of their awareness of plaintiff's lawsuit, and their subsequent participation in settlement negotiations, manifests actual notice of the action. 

Supreme Court providently denied defendants' motion under CPLR 5015(a)(1) for failure to provide a reasonable excuse for their default. Defendants' denials of receipt of service, without proof, fall short of creating reasonable excuse. Furthermore, defendants' claim that the parties were involved in settlement negotiations does not constitute a reasonable excuse.

4CS Ltd v Kahiri Diamonds Ltd, NY Slip Op 04513 (1sr Dep't September 24, 2024)

Here is the decision.

Change of venue.

A demand to change venue based upon the designation of an improper county must be "served with the answer or before the answer is served," pursuant to CPLR 511[a]. Here, since no demand to change venue was served with the answer or before the answer had been served, that branch of the defendants' motion which was to change venue on the ground that the county designated was improper, pursuant to CPLR 510[1], was untimely. The defendants were not entitled to change venue as of right, and their motion became one addressed to the Supreme Court's discretion. The Supreme Court improvidently exercised its discretion in granting that branch of their motion which was to change venue, since the defendants failed to demonstrate that they moved promptly for a change of venue after the plaintiff testified at his deposition that he lived at an address in Richmond County.

Aguilar v. Reback, NY Slip Op 04444 (2d Dep't September 18, 2024)

Here is the decision.

Fraud by omission.

Fraud by omission claims that are not supported by a duty to speak will be dismissed.

Solidx Mgt., LLC v. Vaneck Sec. Corp., NY Slip Op 04489 (1st Dep't September 19, 2024)

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, conclusively establishing a defense as a matter of law.

Adelson v. Sharkey, NY Slip Op 04443 (2d Dep't September 18, 2024)

Here is the decision.

Service on a corporation.

Pursuant to CPLR 317, a party that was not personally served may defend against an action if it demonstrates that it did not have notice of the action in time to defend and that it has a meritorious defense. Service on a corporation through delivery of the summons and complaint to the Secretary of State is not personal delivery to the corporation.

Here, the defendant established its entitlement to relief from its default under CPLR 317 by demonstrating that the address on file with the Secretary of State at the time the summons and complaint were served was incorrect and, consequently, that it did not receive actual notice of the action in time to defend itself. Further, the evidence does not suggest that the defendant's failure to update its address with the Secretary of State constituted a deliberate attempt to avoid service of process, and there is some evidence in the record suggesting that the plaintiff had knowledge of the defendant's actual business address.

In addition, the defendant demonstrated the existence of potentially meritorious defenses to the causes of action, including a defense based on the general release that terminated the earlier action.

Galatro v. Lake Pointe Owners, Inc., NY Slip Op 04375 (2d Dep't September 11, 2024)

Here is the decision.

Expert opinions.

An expert's competence in a particular subject may derive from long observation and real-world experience, and is not dependent on formal training or having an academic degree in the subject. Where the expert's factual conclusions partially contradict a plaintiff's deposition testimony, the expert opinion is still sufficient to defeat summary judgment where the opinion is based on other record evidence and is neither speculative nor conclusory.

Cameron v. Palmeri, NY Slip Op 04371 (2d Dep't September 11, 2024)

Here is the decision.

Premises liability.

In a premises liability case, the defendant can establish prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of an injury without engaging in speculation.  However, in order to withstand summary judgment, the plaintiff need only raise a triable issue of fact regarding whether defendant's conduct proximately caused plaintiff's injuries.

Here, the defendant met the prima facie burden by submitting the reports of two fire departments, which determined that the cause of the fire at issue was undetermined. However, in opposition, the plaintiff raised a triable issue of fact as to the cause of the fire by submitting an expert' opinion as to the area of the fire origin and that the electrical wiring was the cause of the fire. The opinion was amply supported by the record and was neither speculative nor conclusory. 

Further, the defendant failed to establish, prima facie, that the plaintiff's conduct was a superseding cause of the injuries. The plaintiff's decision to enter the home to put out a fire that he reasonably believed was contained to just the portion of the AC unit that was outside the home was not so obviously fraught with danger that its very nature evidences a wanton disregard for the actor's own personal safety or well-being.

Cameron v. Palmeri, NY Slip Op 04371 (2d Dep't September 11, 2024)

Here is the decision.

Negligence actions.

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he was not at fault in the happening of the accident.  There can be more than one proximate cause of an accident, and it is for the trier of fact to determine the issue of proximate cause. However, proximate cause may determined as a matter of law where the defendant's negligence merely created the opportunity for, but did not cause, the event that resulted in harm to the plaintiff.

Bristol v, Biser, NY Slip Op 04370 (2d Dep't September 11, 2024)

Here is the decision.

Laches.

Laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party. In order to establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of; (2) delay by the complainant in asserting a claim for relief despite the opportunity to do so; (3) lack of knowledge or notice on the part of the offending party that the complainant would assert a claim for relief; and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant. Here, the defendant established that the plaintiffs' more than 10-year delay in seeking to void the defendant's mortgage, together with the prejudice to him by the delay, as he relied on the mortgage as payment for his legal services, warranted application of the doctrine of laches.  The defendant's motion to dismiss the complaint is granted.

Bricker v. Ole Thorsen, NY Slip Op 04369 (2d Dep't September 11, 2024)

Here is the decision.

Vacatur.

CPLR 5015(a)(1) permits the vacatur of an order rendered as a result of excusable default.  Bare allegations of law office failure are insufficient to warrant vacatur.

Bengas v. Ardsley Country Club, Inc., NY Slip Op 04368 (2d Dep't September 11, 2024)

Here is the decision.

Slips-and-falls.

In a slip-and-fall case, the defendant property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence.. In order to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it.  In order to meet its prima facie burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.

Arbit v. Costco Wholesale Corp., NY Slip Op 04366 (2d Dep't September 11, 2024)

Here is the decision.

Discovery disputes.

Before contacting the court regarding a discovery dispute, counsel must consult with one another, in good faith, either in-person or by telephone. If the dispute cannot be resolved other than through motion practice, there must be a supporting affidavit or affirmation attesting to counsel having conducted an in-person or telephonic conference, setting forth the date and time, persons participating, and the length of time of the conference.

Bayview Loan Servicing, LLC v. Evanson, NY Slip Op 04367 (2d Dep't September 11, 2024)

Here is the decision.

The covenant of good faith and fair dealing.

Plaintiff alleges not only breach of contract through failure to meet financial obligations, but, separately, a scheme to divest plaintiff of its interest in the loan at issue by purchasing and foreclosing on a senior loan. Accordingly, plaintiff has stated a claim for breach of the covenant of good faith and fair dealing, which is not duplicative of its contract claim.

Ria R Squared, Inc. v. WD Partners, LP, NY Slip Op 04363 (1st Dep't September 5, 2024)

Here is the decision.

Applicability of the relation-back doctrine.

Application of the doctrine is proper where, as here, a new action has been commenced and consolidated with a prior action. Its application is not limited to those instances where the plaintiff is seeking an amendment of the complaint in the original action. The doctrine may be applied if the party was identified in the prior action but not made a party to that action owing to the plaintiff's failure to comply with the technical requirements for commencing an action.

Picchioni v. Sabur, NY Slip Op 04362 (1st Dep't September 5, 2024)

Here is the decision.

Statutory interpretation.

When presented with a question of statutory interpretation, the court's primary consideration is to ascertain and give effect to the intention of the Legislature. Since the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. Further, a statute must be construed as a whole, and its various sections must be considered together and with reference to each other.

Matter of Winter v. Luft, NY Slip Op 04364 (2d Dep't September 6, 2024)

Here is the decision.

Contract law.

Unambiguous terms of an agreement between sophisticated parties must be enforced pursuant to their plain meaning. unless it would produce a result that is absurd, commercially unreasonable, or contrary to the reasonable expectations of the parties.

GCA Advisors, LLC v. Intersections, Inc., NY Slip Op 04359 (1st Dep't September 5, 2024)

Here is the decision.

Discovery disputes.

The resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is left to the sound discretion of the motion court. Actions should be resolved on their merits whenever possible, and the drastic remedy of striking a pleading or the alternative remedy of precluding evidence should not be employed without a clear showing that the failure to comply with court-ordered discovery was willful and contumacious.

Edwards v. Freedom Church of Revelation, NY Slip Op 04305 (2d Dep't August 28, 2024)

Here is the decision.

Foreclosing a mortgage.

In moving for summary judgment in an action to foreclose a mortgage, the plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default. The plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law. The plaintiff can establish a default by submitting an affidavit from a person having personal knowledge of the facts or other evidence in admissible form. The business record exception to the hearsay rule applies to a writing or record, pursuant to CPLR 4518[a], and it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Without the introduction of the records themselves, a witness's testimony as to the contents of the records is inadmissible hearsay.

Deutsche Bank Natl. Trust Co. v. Pirozzi, NY Slip Op 04304 (2d Dep't August 28, 2024)

Here is the decision.

Finding a pharmacy negligent.

When a pharmacist has demonstrated that he did not undertake to exercise any independent professional judgment in filling and dispensing prescription medication, the pharmacist cannot be held liable for negligence in the absence of evidence that failed to fill the prescription precisely as directed by the prescribing physician or that the prescription was so clearly contraindicated that ordinary prudence required the pharmacist to take additional measures before dispensing the medication. Here, the complaint does not allege that the pharmacy exercised independent professional judgment or that it did not fill the prescriptions as directed. Nevertheless, accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently alleges that the prescriptions were so clearly contraindicated that ordinary prudence required the pharmacy to take additional measures before dispensing the medication. The motion to dismiss is denied.

Bistrian v. Gibson, NY Slip Op 04303 (2d Dep't August 28, 2024)

Here is the decision.

Unsworn submissions.

The unsworn expert report submitted by the defendant in support of his motion for summary judgment dismissing the complaint was insufficient to meet his prima facie burden, pursuant to CPLR 2106 and 3212[b].

Beier v. Giglio, NY Slip Op 04302 (2d Dep't August 28, 2024)

Here is the decision.

Premises liability.

Property owners have a common-law duty to maintain property in a reasonably safe condition, but there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident. However, a condition that is ordinarily apparent to a person making reasonable use of his senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted.

Beier v. Giglio, NY Slip Op 04302 (2d Dep't August 28, 2024)

Here is the decision.

Federal preemption.

Federal preemption is based on the US Constitution's Supremacy Clause. The issue of federal preemption is a question of law,  since it concerns whether, as a matter of statutory interpretation, Congress has enacted a law for which a particular state rule is to the contrary. The inquiry into the scope of a statute's preemptive effect is guided by the rule that the purpose of Congress is the ultimate touchstone in every preemption case. If the statute at issue contains an express preemption clause, the task of statutory construction must, in the first instance, focus on the plain wording of the clause, which necessarily contains the best evidence of Congress's preemptive intent.

Malerba v. New York City Tr. Auth., NY Slip Op 04344 (1st Dep't August 29, 2024)

Here is the decision.

Recovery in tort against a municipality.

Persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim within 90 days after the claim arises. Pursuant to General Municipal Law § 50-e(2), the notice must set forth the nature of the claim, and the time, place, and manner in which the claim arose. The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the public entity to locate the place, fix the time, and understand the nature of the accident. Claims of roadway, sidewalk, or similar defects must be set forth with great specificity because of their transitory nature.   A court determining a motion to dismiss a complaint on the ground that the notice of claim is insufficient must examine the four corners of the notice, and 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. However, this evidence cannot be used to substantively change the nature of the claim or the theory of liability, since causes of action or legal theories may not be raised in the complaint or in a bill of particulars that were not directly or indirectly mentioned in the notice of claim and that change the nature of the claim or assert a new one.

Behrens v. Town of Huntington, NY Slip Op 04301 (2d Dep't August 28, 2024)

Here is the decision.

Commencing a foreclosure action.

Strict compliance with RPAPL 1304 providing notice to the borrower is a condition precedent to the commencement of a foreclosure action.  Pursuant to the statute, notice must be sent "by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage." A plaintiff demonstrates statutory compliance by submitting proof of the actual mailings or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure.

Bank of Am., N.A. v. Sach, NY Sli[p Op 04300 (2d Dep't August 28, 2024)

Here is the decision.

Premises liability.

In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous condition nor had actual or constructive notice of its existence. In order to meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.  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. However, in order to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it. When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.

K. B. v. City of Mount Vernon, NY Slip Op 04299 (2d Dep't August 28, 2024)

Here is the decision.