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.

Equitable distribution of marital property.

A trial court is vested with broad discretion in making an equitable distribution of marital property, and, unless it is shown that the court improvidently exercised that discretion, its determination should not be disturbed on appeal. Equitable distribution is based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner, or homemaker. The distribution of marital assets depends not only on the financial contribution of the parties but also on a wide range of non-remunerated things such as homemaking, raising children, and the providing of the emotional and moral support necessary to sustain the other spouse in coping with matters outside the home.

Albano v. Albano, NY Slip Op 04298 (2d Dep't August 28, 2024)

Here is the decision.

Evidentiary rulings.

Trial courts are accorded wide discretion in making evidentiary rulings, and those rulings should not be disturbed on appeal absent an improvident exercise of discretion or a showing of prejudice to a substantial right, pursuant to CPLR 2002.

6 Harbor Park Dr., LLC v. Town of N. Hempstead, NY Slip Op 04297 (2d Dep't August 28, 2024)

Here is the decision.

Running a light.

A driver who enters an intersection against a red traffic light in violation of Vehicle and Traffic Law § 1110(a) is negligent as a matter of law. Here, the plaintiff established prima facie entitlement to judgment as a matter of law by submitting a transcript of his deposition testimony, which demonstrated that he proceeded through the intersection with a green traffic light and that the defendant's conduct was the sole proximate cause of the accident, as the defendant entered the intersection against a red traffic light. In opposition, however, the defendant raised a triable issue of fact by submitting a transcript of his deposition testimony, wherein he averred that when he entered the intersection, the traffic light was green in his favor, and further averred that he stopped fully before the plaintiff's vehicle struck the defendant's vehicle.  The plaintiff's motion for summary judgment on the issue of liability is denied.

Degachi v Faridi, NY Slip Op 04241 (2d Dep't August 21, 2024)

Here is the decision.

Confirming a referee's report.

The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility. However, any computations based on the review of unidentified and unproduced business records are inadmissible hearsay and lack probative value.

Here, the referee's report was based upon her review of the note and mortgage, the summons and complaint, and an affidavit of merit and the amount due to the plaintiff. However, the affiant failed to produce the business records that the referee purportedly relied on in making her calculations.

Plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied.

Countrywide Home Loans Servicing, L.P. v. Weberman, NY Slip Op 04240 (2d Dep't August 21, 2024)

Here is the decision.

Motor vehicle accidents.

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 a defendant moving for summary judgment must show that he is free from fault. Pursuant to Vehicle and Traffic Law § 1214, "[n]o person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic."

Angelastro v. Dyer, NY Slip Op 04237 (2d Dep't August 21, 2024)

Here is the decision.

Extending time to commence an action.

CPLR 205(a) extends the time to commence an action after the termination of an earlier related action, where both actions involve the same transaction or occurrence or series of transactions or occurrences. However, the six-month grace period provided under CPLR 205(a) is not available where the previous action has been terminated by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment on the merits.  A discontinuance effectuated pursuant to either CPLR 3217(a) or (b) constitutes a voluntary discontinuance for purposes of CPLR 205(a). 

Castillo v. Suffolk Paving Corp., NY Slip Op 04239 (2d Dep't August 21, 2024)

Here is the decision.

The doctrine of primary jurisdiction.

The doctrine of primary jurisdiction coordinates the relationship between courts and administrative agencies so that any divergence of opinion between them does not render ineffective the statutes with which both are concerned. The doctrine applies to the extent that the matter before the court is within the agency's specialized field. Under the doctrine, there is concurrent jurisdiction, but where an administrative agency has the necessary expertise to dispose of an issue, the court's involvement awaits resolution of the administrative proceeding.

Calle v. National Grid USA Serv. Co., Inc., NY Slip 04190 (2d Dep't August 14, 2024)

Here is the decision.

Statute of frauds.

Under the statute of frauds, a contract for the sale of real property must be evidenced by a writing, pursuant to General Obligations Law § 5-703[1].  In order to satisfy the statute of frauds, the writing evidencing a contract must identify the parties, describe the subject matter, be signed by the party to be charged, and state all of the essential terms of the agreement. The writing must set forth the entire contract with reasonable certainty so that the substance thereof appears from the writing alone. If the contract is incomplete and it is necessary to resort to parol evidence to ascertain what was agreed to, the remedy of specific performance is not available.

Block 865 Lot 300, LLC v. Baione, NY Slip Op 04189 (2d Dep't August 14, 2024)

Here is the decision.

Judgments of foreclosure and sale.

In order to be entitled to a judgment of foreclosure and sale against a defendant, the plaintiff must first establish entitlement to judgment against that defendant via a summary judgment motion or a motion for leave to enter a default judgment, or at trial.

Bank of N.Y. Mellon v. Levinson, NY Slip Op 04188 (2d Dep't August 14, 2024)

Here is the decision.

Default judgments.

A plaintiff seeking leave to enter a default judgment under CPLR 3215 must file proof of: (1) service of the summons and complaint; (2) the facts constituting the claim; and (3) the defendant's default. In order to defeat a facially sufficient CPLR 3215 motion, the defendant must show either that there was no default or that it had a reasonable excuse for its delay and a potentially meritorious defense.

Austin 26 Dental Group, PLLC v. Sino Northeast Metals (U.S.A.), Inc., NY Slip Op 04187 (2d Dep't August 14, 2024)

Here is the decision.

Summary judgment In a slip-and-fall action.

Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area where the accident occurred.

Ames v. Kimso Apts., Inc., NY Slip Op 04186 (2d Dep't August 14, 2024)

Here is the decision.

Employment Law.

Under State law, "if a reasonable accommodation would permit the employee to perform the essential functions of the employee's position, the employee has a 'disability' within the meaning of the statute, and the employer cannot disadvantage the employee based on that disability." The State's definition of "disability" does not include reasonable accommodation, but City law requires that an employer "shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job."  Under both State and City law, an employee's request for an accommodation is relevant to the determination of whether a reasonable accommodation can be made. In order to prevail on a motion for summary judgment, an employer must demonstrate that it engaged in a good faith interactive process that assessed the needs of the disabled individual and the reasonableness of the accommodation requested. Both the employer and the employee have a duty to engage in a good-faith dialogue once the interactive process begins, and an employee who is responsible for the breakdown of that interactive process may not recover for a failure to accommodate. City law affords broader protections than State law, and there is no accommodation that is per se excluded from the category of reasonable accommodation for purposes of the City statute.

Alvarez v. New York City Tr. Auth., NY Slip Op 04185 (2d Dep't August 14, 2024)

Here is the decision.

Good faith and fair dealing.

The implied covenant of good faith is a limited one, as courts will find an obligation of good faith only in aid and furtherance of other terms of the agreement. A party who asserts the claim bears a heavy burden of showing not merely that it would have been better or more sensible to include such a covenant within the terms of the agreement, but, rather, that the particular unexpressed promise sought to be enforced is in fact implicit in the agreement viewed as a whole.

DirecTV, LLC v. Nexstar Broadcasting, Inc., NY Slip Op 04225 (1st Dep't August 15, 2024)

Here is the decision.

Statute of limitations.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground of the statute of limitations, the defendant must establish, prima facie, that the time in which to commence the action has expired. If the showing is made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4].

Comito v. Z & N Enters. Corp., NY Slip Op 04124 (2d Dep't August 7, 2024)

Here is the decision.

Service of process.

Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308. A process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service. Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits. A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the process server's affidavit. Minor discrepancies between the appearance of the person allegedly served and the description of the person served in the affidavit of service are insufficient to raise an issue of fact warranting a hearing.

Citimortgage, Inc. v. Cardali, NY Slip Op 04123 (2d Dep't August 7, 2024)

Here is the decision.

Summary judgment.

Successive summary judgment motions are improper in the absence of newly discovered evidence or other sufficient cause.

Perretta v. New York City Tr. Auth., NY Slip Op 04184 (1st Dep't August 8, 2024)

Here is the decision.

Discretionary vacatur.

 CPLR 5015(a)(1) provides that the court which rendered a judgment or order may relieve a party from that judgment or order on the ground of excusable default. However, a motion to vacate a judgment or order based on an excusable default must be made within one year after service thereof with notice of entry. Here, the defendant's motion to vacate the order and judgment of foreclosure and sale was made approximately 4½ years after the defendant was served with notice of entry of the order and judgment. As such, the motion was untimely.

Bank of N.Y. Mellon v. Taylor, NY Slip Op 04119 (2d Dep't August 7, 2024)

Here is the decision.

Personal jurisdiction.

A defendant's appearance in an action is deemed to be the equivalent of personal service of a summons, and, in the absence of an objection to jurisdiction by way of a motion or answer, the appearance confers personal jurisdiction over that defendant. In addition to the formal appearances listed in CPLR 320(a), a defendant may appear informally by actively litigating the action before the court. Here, the defendant waived the defense of lack of personal jurisdiction by filing a notice of appearance and opposing the plaintiff's motion for leave to enter a default judgment against the defendant and for an order of reference without simultaneously asserting an affirmative objection to jurisdiction.

Bank of N.Y. Mellon v. Taylor, NY Slip Op 04119 (2d Dep't August 7, 2024)

Here is the decision.

Leave to reargue.

A motion for leave to reargue is directed to the trial court's discretion. In order to warrant reargument, the moving party must demonstrate that the court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law, pursuant to CPLR 2221[d].

AWR Group, Inc. v. 240 East Place Hous. Dev. Fund Corp., NY Slip Op 04118 (2d Dep't August 7, 2024)

Here is the decision.

CPLR 3216.

CPLR 3216 is an extremely forgiving statute, which never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed. While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay and a meritorious cause of action,  such a dual showing is not strictly necessary in order for the plaintiff to escape dismissal.

Here, where discovery has been completed and there is no evidence that the defendants have been prejudiced by any delay, the Supreme Court did not improvidently exercise its discretion in granting the defendants' motion pursuant to CPLR 3216 to dismiss the complaint only to the extent of directing the plaintiff to file a note of issue on or before January 17, 2023, in order to avoid dismissal of the complaint.

Disla v. El Potrero Sport Bar, Inc., NY Slip Op 04060 (2d Dep't July 31, 2024)

Here is the decision.

Summary judgment.

On a motion for summary judgment, the moving defendant does not establish its prima facie entitlement to judgment as a matter of law by merely pointing to gaps in the plaintiff's case. The moving defendant must affirmatively demonstrate the merit of its claim or defense.

Cooper v. First In Queens, Inc., NY Slip Op 04059 (2d Dep't July 31, 2024)

Here is the decision.

Slips-and-falls.

A defendant moving for summary judgment in a slip-and-fall case has the burden of demonstrating, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. The defendant has constructive notice of a dangerous condition when it is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it. In order to meet its burden on the issue of lack of constructive notice, the defendant is required to offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff slipped and fell.

Carmenati v. Sea Park E., L.P., NY Slip Op 05047 (2d Dep't July 31, 2024)

Here is the decision.

Adverse possession.

It is well-settled that a municipality cannot lose title through adverse possession to property which it owns in its governmental capacity, or which has been made inalienable by statute. Conversely, when a municipality holds real property in its proprietary capacity, there is no immunity against adverse possession.

Bronxville Scout Comm. v. County of Westchester, NY Slip Op 04055 (2d Dep't July 31, 2024)

Here is the decision.

Attorney discipline.

It is well-settled that, absent extremely unusual mitigating circumstances, an attorney who misappropriates funds is presumptively unfit to practice law. In order to establish the requisite venal intent for intentional conversion, all that is required is evidence that the attorney knowingly withdrew IOLA or escrow funds, without permission or authority, and that he used the funds for his own purposes.

Matter of Etheridge, NY Slip Op 04113 (1st Dep't August 1, 2024)

Here is the decision.

Admissibility of business records.

A properly executed affidavit may provide a foundation for the admission of business records. However, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.

Bayview Loan Servicing, LLC v. Healey, NY Slip Op 04054 (2d Dep't July 31, 2024)

Here is the decision.

Pleading negligence.

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. An affidavit that raises only a feigned issue of fact is insufficient to defeat the motion.

Andre v. New York City Dept. of Educ., NY Slip Op 04053 (2d Dep't July 31, 2024)

Here is the decision.

Labor Law § 240(1).

Under the statute, contractors must provide appropriate safety devices for workers engaging in labor that involves elevation-related risks. In order to prevail on the cause of action, a plaintiff must show, prima facie, that the defendant's statutory violation was a proximate cause of the plaintiff's injuries.

Comparative fault is not a defense to the statute's strict liability,  but where the plaintiff is the sole proximate cause of his own injuries, there can be no liability under the statute. A plaintiff may be the sole proximate cause of his own injuries when, acting as a recalcitrant worker, he (1) had adequate safety devices available; (2) knew both that the safety devices were available and that he was expected to use them; (3) chose, for no good reason, not to do so; and (4) would not have been injured had he not made that choice.

Amaro v. New York City Sch. Constr. Auth., NY Slip Op 04052 (2d Dep't July 31, 2024)

Here is the decision.

Opinion evidence.

Opinion evidence must be based on facts in the record. An expert cannot speculate, guess, or reach a conclusion by assuming material facts not supported by the evidence. The opinion must be supported either by facts disclosed by the evidence or by facts known to the expert personally. It is essential that the facts upon which the opinion is based be established, or fairly inferable, from the evidence.

An expert's affirmation that sets forth general conclusions, misstatements of evidence, and unsupported assertions, and which fails to address the opinions of defendant's expert, is insufficient to defeat summary judgment. Also insufficient is is one which raises for the first time in opposition to summary judgment a new theory of liability that has not been set forth in the bills of particulars or in the complaint.

Cabrera v. Golden, NY Slip Op 04112 (1st Dep't August 1, 2024)

Here is the decision.

Vacating a default.

In order to vacate a default in appearing at a conference, the defaulting party must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action. The determination of whether an excuse is reasonable lies within the sound discretion of the trial court. The court may accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation of the default. However, law office failure should not be excused where the default results not from an isolated, inadvertent mistake, but from repeated neglect, or where allegations of law office failure are vague, conclusory, and unsubstantiated.

All Is. Realty Corp. v. Roma Imported Car Ctr., Inc., NY Slip Op 04051 (2d Dep't July 31, 2024)

Here is the decision.

Employment law.

In order to establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the plaintiff's injury.  Here, the amended complaint failed to state a cause of action to recover damages for negligent hiring and retention since it failed to allege that the defendant knew, or should have known, of a propensity on the part of any employee or employees to commit an alleged wrongful act.

Abbas v. Richmond Univ. Med. Ctr., NY Slip Op 04050 (2d Dep't July 31, 2024)

Here is the decision.

Contract law.

A stipulation of settlement that is incorporated, but not merged, into a judgment of divorce is a contract subject to the ordinary principles of contract construction and interpretation. Such a contract is interpreted in accordance with the intent of the parties. The best evidence of their intent is expressed in their written agreement. Clear, unambiguous contractual terms must be enforced according to their plain meaning, and the court may not by construction add or excise terms to create a new contract for the parties under the guise of interpreting the writing.

Sebrell v. Svet, NY Slip Op 04115 (1st Dep't August 1, 2024)

Here is the decision.

Motions to extend time.

Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default, pursuant to CPLR 3012[d].  A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012(d) must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. This determination is based on numerous factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits.

Bacova v. City of New York, NY Slip Op 03872 (2d Dep't July 24, 2024)

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Landlord-tenant law.

At common law, when a tenant remains in possession after the expiration of a lease, there is implied a continuance of the tenancy on the same terms and subject to the same covenants as those contained in the original instrument.

Absolute Med. Servs., Inc. v. Garnerville Holding Co., Inc., NY Slip Op 03871 (2d Dep't July 24, 2024)

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Liability on a personal guaranty

The terms of a guaranty are to be strictly construed, and the guarantor may not be found liable beyond the express terms of the guaranty. A holdover tenancy, in and of itself, cannot  extend a personal guarantee in the absence of an explicit provision in the guaranty.

Absolute Med. Servs., Inc. v. Garnerville Holding Co., Inc., NY Slip Op 03871 (2d Dep't July 24, 2024)

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Foreclosures.

An action to foreclose a mortgage is governed by a six-year statute of limitations, However even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt. The entire mortgage debt will be deemed to have been accelerated by, as relevant here, the commencement of a mortgage foreclosure action in which the complaint seeks payment of the full outstanding loan balance.

A person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge of record that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired, provided that the mortgagee or its successor was not in possession of the subject real property at the time the action to cancel and discharge of record the mortgage was commenced.

2078 Mgt., LLC v. US Bank Trust, N.A., NY Slip Op 03870 (2d Dep't July 24, 2024)

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Intentional infliction of emotional distress.

First recognized as a cognizable cause of action in 1978, the tort is designed to provide a remedy to an individual who suffers severe emotional distress after being subjected to extreme and outrageous conduct by another who intends to cause that distress or does so recklessly.

The cause of action action has four elements: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and [plaintiff's] injury; and (4) severe emotional distress.

Extreme and outrageous conduct is that which goes beyond all possible bounds of decency, so as to be regarded as atrocious, and utterly intolerable in a civilized community.

Brown v. Riverside Church in the City of N.Y., NY Slip Op 03927 (1st Dep't July 25, 2024)

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Notices of claim.

The court providently exercised its discretion by denying plaintiff's motion for leave to file a late notice of claim on defendants New York City Health & Hospitals Corporation (HHC) and Bellevue Hospital, pursuant to General Municipal Law § 50-e[5]. The court properly determined that it could not grant leave as to the medical malpractice and negligence claims alleged in the complaint because the one-year and 90-day statute of limitations for those claims expired before the motion was made. Moreover, the complaint does not expressly assert a cause of action for wrongful death and fails to allege the required element that the decedent's estate had distributees who could have suffered pecuniary loss by reason of her death.

Axisa v. New York City Health & Hosps. Corp., NY Slip Op 038=926 (1st Dep't July 25, 2024)

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Premises liability.

Owners and lessees are under a duty to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. In order for a defendant charged with maintaining a property to be liable in tort as a result of an allegedly defective condition upon the property, it must be established that the defendant affirmatively created the condition or had actual or constructive notice of it. A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected. In addition, a defendant who has actual knowledge of a particular ongoing and recurring hazardous condition may be charged with constructive notice of each specific reoccurrence of that condition. A defendant will be deemed to have constructive notice where there is evidence of an ongoing and recurring dangerous condition in the area of the accident which was routinely left unaddressed. Mere notice of a general or unrelated problem is not enough; the particular defect that caused the damage must have been apparent.

Graham v. New York City Hous. Auth., NY Slip Op 03810 (2d Dep't July 17, 2024)

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Motion practice.

In the exercise of its discretion, a court may grant relief not specifically requested in the notice of motion, pursuant to a general prayer for relief contained in the notice of motion, if the relief is warranted by the facts plainly appearing on the papers on both sides, and if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.

Here, the defendant, in its answer, pled statute of limitations as an affirmative defense but did not move to dismiss on that ground pursuant to CPLR 3211(a). The Supreme Court did not improvidently exercise its discretion in declining to dismiss the complaint on statute of limitations grounds.

Caesar v. Metropolitan Transportation. Auth., NY Slip Op 03807 (2d Dep't July 17, 2024)

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Condominium boards.

In reviewing a condominium board's actions, courts should apply the business judgment rule, under which the court's inquiry is limited to whether the board acted within the scope of its authority under the by-laws and whether the action was taken in good faith to further a legitimate interest of the condominium. Absent a showing of fraud, self-dealing, or unconscionability, the court will not inquire as to the wisdom or soundness of the business decision.

Board of Mgrs. of Oceanview Condominium v. Riccardi, NY Slip Op 03806 (2d Dep't July 17, 2024)

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Mortgage law.

A mortgagee's interest in the property is protected unless it has notice of a previous fraud affecting the title of its grantor. The mortgagee is under a duty to make an inquiry where it is aware of facts 'that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue. A mortgagee who fails to make such an inquiry is not a bona fide encumbrancer for value. The question of what constitutes fair consideration is generally one of fact, to be determined under the circumstances of the particular case.

Baldeo v. HSBC Bank USA, NA, NY Slip Op 03805 (2d Dep't July 17, 2024)

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Motions to dismiss.

When seeking a CPLR 3211 dismissal, a defendant can submit evidence, such as affidavits or testimony, attacking a well-pleaded cognizable claim.  Such submission change the CPLR 3211 inquiry from whether the pleader has stated a cause of action to whether the pleader has a cause of action amenable to relief, or whether the defendant has a complete defense to the claims. Any such evidence must conclusively establish, as a matter of law, a defense to the plaintiff's claims.

Holder v. Jacob, NY Slip Op[ 03864 (1st Dep't July 18, 2024)

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Contract law.

The defendant's motion to dismiss the causes of action alleging breach of contract and unjust enrichment pursuant to CPLR 3211(a)(7) is granted. The asset purchase agreement constituted a voluntary prospective arrangement for the splitting of fees in violation of the Education Law because it required the defendant to pay the plaintiff a percentage of revenue generated by the plaintiff's practice and, under certain conditions, the defendant's own separate dental practice. A party to an illegal contract cannot ask a court of law to help him carry out an illegal object. Neither can the party plead or prove in any court a case in which setting forth or proving the claim would reveal its illegal purpose. 

Advanced Dental of Ardsley, PLLC v. Brown, NY Slip Op 03804 (2d Dep't July 17, 2024)

Here is the decision.

Vacating a default.

A party seeking to vacate an order entered upon a default in opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion. A conclusory and unsubstantiated claim of ill health is not a reasonable excuse.  The absence of a reasonable excuse for the default renders it unnecessary to determine whether the movant demonstrated the existence of a potentially meritorious opposition to the motion.

Fuchs-Goren v. Goren, NY Slip Op 03736 (2d Dep't July 10, 2024)

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Contract law.

A contract is to be construed in accordance with the intent of the parties, and the best evidence of their intent is what they express in their written contract. Clear, complete, and unambiguous contractual terms are to be enforced according to their plain meaning, and every aspect of the contract must be accorded meaning and effect. Where the contract was negotiated and relied upon by experienced, sophisticated business actors represented by counsel, the parties are entitled to the commercial certainty that flows from the enforcement of the plain meaning of their unambiguous agreement.

Iberdrola Energy Projects v. Oaktree Capital Mgt. L.P., NY Slip Op 03798 (1st Dep't July 11, 2024)

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CPLR 3215(c).

Pursuant to CPLR 3215(c), "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed." When an action is subject to a mandatory settlement conference, pursuant to CPLR 3408), motions shall be held in abeyance while conferences are held and the one-year deadline imposed by CPLR 3215(c) is tolled.

Federal Nat. Mtge. Assn. v. Vivenzio, NY Slip Op 03734 (2d Dep't July 10, 2024)

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Medical malpractice.

The essential elements of a medical malpractice cause of action are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury. When moving for summary judgment, the defendant .has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars. Then, it is the plaintiff's burden to raise a triable issue of fact regarding the element or elements on which the defendant has made its prima facie showing.

Summary judgment is not appropriate where the parties adduce conflicting expert opinions. However, general and conclusory allegations of malpractice, unsupported by competent evidence tending to establish the essential elements, are insufficient to defeat a defendant physician's summary judgment motion. The plaintiff's expert must specifically address the defense expert's allegations.

Fairchild v. Lerner, NY Slip Op 03733 (2d Dep't July 10, 2024)

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Foreclosure and sale.

A judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action. Here, the entry of the judgment of foreclosure and sale bars consideration of the issues raised by the defendant, since those issues either were raised or could have been raised during the pendency of the action.

Deutsche Bank Natl. Trust Co., v. Matheson, NY Slip Op 03732 (2d Dep't July 10, 2024)

Here is the decision.

Appellate practice.

The plaintiff commenced this action to recover damages for breach of an implied contract and unjust enrichment. The defendant moved pursuant to CPLR 3211(a)(1), (3), and (7) to dismiss the complaint. By order dated June 24, 2022, the Supreme Court granted the motion pursuant to CPLR 3211(a)(3) for lack of standing and pursuant to CPLR 3211(a)(7) for failure to state a cause of action. The plaintiff appeals from so much of the order as granted that branch of the motion which was to dismiss the cause of action to recover damages for unjust enrichment.

On appeal, the plaintiff asserts that the Supreme Court improperly granted the branch of the motion pursuant to CPLR 3211(a)(7) for failure to state a cause of action. However, the plaintiff advances no arguments concerning that portion of the order which granted that branch of the motion pursuant to CPLR 3211(a)(3) for lack of standing. As the plaintiff does not challenge the court's determination that the plaintiff lacked standing to assert a cause of action sounding in unjust enrichment, the plaintiff's contention that the cause of action was not subject to dismissal under CPLR 3211(a)(7) is academic. The Appellate Division affirms the order insofar as appealed from without reaching the plaintiff's arguments concerning CPLR 3211(a)(7).

AA Med., P.C. v. Employee Med. Health Plan of Suffolk County, NY Slip Op 03722 (2d Dep't July 10, 2024)

Here is the decision.

Premises liabiliity.

A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties. In order to establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected. However, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the location of the incident. Without evidentiary proof of notice of prior criminal activity, the owner's duty reasonably to protect those using the premises from such activity never arises.

Lazarus v. Wildlife Preserves, Inc., NY Slip Op 03685 (2d Dep't July 3, 2024)

Here is the decision.