Attorneys' fees.

The decision to award attorneys' fees and the determination as to their reasonableness lies within the sound discretion of the trial court. The attorney bears the burden of establishing the reasonable value of the services rendered, based on a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community. The court should consider factors such as (1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; (2) the lawyer's experience, ability, and reputation; (3) the amount involved and benefit resulting to the client from the services; (4) the customary fee charged for similar services; (5) the contingency or certainty of compensation; (6) the results obtained; and (7) the responsibility involved.

Neeman v. Smith, NY Slip Op 02541 (2d Dep't May 8, 2024)

Here is the decision.

Appellate practice.

 It is the appellant's obligation to assemble a proper record on appeal. The record on appeal must contain all of the relevant papers before the Supreme Court. An appeals that is not based on a complete and proper record must be dismissed.

Here, the record failed to include the exhibits allegedly demonstrating that the plaintiff's former counsel was involved in a fraud scheme. Furthermore, the record does not contain a copy of the complaint, the amended complaint, or the defendant's answer. Since these omissions have rendered meaningful appellate review of the court's order virtually impossible, the appeal must be dismissed 

Bing v. Myrtle 6, LLC, NY Slip Op 02516 (2d Dep't May 8, 2024)

Here is the decision.

Leave to amend

A motion for leave to amend a pleading should not be granted where prejudice or surprise to the opposing party results directly from the moving party's delay. The determination to permit or deny amendment is committed to the sound discretion of the trial court. In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion is predicated and whether there is a reasonable excuse for the delay.

Ofman v. Bluestone, NY Slip Op 02542 (2d Dep't May 8, 2024)

Here si the decision.

Right to a jury trial.

Claims seeking only money damages under the quasi-contractual theory of quantum meruit are actions at law, and, as such, the parties are entitled to a trial by jury. Defendant did not waive a jury trial, but, instead, filed his jury demand within fifteen days after service of the note of issue, and more than a year before the purported attorney fee hearing, pursuant to CPLR 4102[a]. Defendant did not lose his right to a jury trial when the motion and cross-motion for summary judgment were decided against him. Supreme Court erred by conducting a bench trial on damages.

Hilton Wiener LLC v. Zenk, NY Slip Op 02595 (1st Dep't May 9, 2024)

Here is the decision.

The law of the case.

The law of the case doctrine is a rule of practice that once an issue is judicially determined, further litigation of that tissue should be precluded in a particular case. The doctrine prevents the parties, or those in privity with them, from relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue.

Teshabaeva v. Family Home Care Servs. of Brooklyn & Queens, Inc., NY Slip Op 02610 (1st Dep't May 9, 2024)

Here is the decision.

Summary judgment.

Plaintiff argues that the motion for summary judgment is premature, but plaintiff has not shown that additional discovery is necessary The mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during discovery is insufficient to deny the motion. 

The motion is granted, and the complaint is dismissed as against defendant.

Loja v. 133 Lincoln LLC, NY Slip Op 02504 (1st Dep't May 7, 2024)

Here is the decision. 

Defaults.

Plaintiff moved for a default judgment, pursuant to CPLR 3215(a), on the ground that defendant had failed to appear. However, defendant's 3211(a) motion to dismiss constituted an appearance. Plaintiff's motion is denied. 

Barbetta v. NBCUniversal Media, LLC, NY Slip Op 02514 (2d Dep't May 8, 2024)

Here is the decision.

Assumed duty of care.

Is a hotel subject to liability for failing to prevent a guest's suicide under a theory of assumed duty, where the hotel does not have custody or control of that guest but delays calling 911 after a family member's request?  No.  In moving to dismiss, the defendants met their prima facie burden, establishing that they neither assumed a duty of care nor proximately caused injury to the decedent. The plaintiffs' experts' speculative and conclusory assertions that the hotel's delay in calling 911 caused decedent's suicide is insufficient to raise an issue of fact.

Beadell v. Eros Mgt., NY Slip Op 02496 (1st Dep't May 7, 2024)

Here is the decision.

Contract law.

An interpretation that renders the contract illusory and, as a result, unenforceable is disfavored. The enforcement of the bargain is preferred, particularly where, in a writing, the parties have expressed their intent to be contractually bound.

Absent fraud or unconscionability, the adequacy of consideration is not a proper subject for judicial scrutiny.

RDF Agent, LLC v. Electric Red Ventures, LLC, NY Slip Op 02384 (1st Dep't May 2, 2024)

Here is the decision.

Exculpatory agreements.

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. Where the language of the exculpatory agreement expresses in unequivocal terms the parties' intention to relieve a defendant of liability for its own negligence, the agreement will be enforced.

Soloviev v. Ross Sch., NY Slip Op 02341 (2d Dep't May 1, 2024)

Here is the decision.

Summary judgment.

Pursuant to CPLR 3212[f], a summary judgment motion may be denied as premature on a showing that essential facts in opposition to the motion are exclusively within the movant's knowledge and control, and that additional discovery might lead to relevant evidence.

Haskins v. Metropolitan Transp. Auth., NY Slip Op 02368 (1st Dep't May 2, 2024)

Here is the decision.

Judgment as a matter of law.

A motion for judgment as a matter of law pursuant to CPLR 4404(a) may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party.

Shouldis v. Strange, NY Slip Op 02340 (2d Dep't May 1, 2024)

Here is the decision.

Motions to dismiss.

On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the 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. Whether the plaintiff can ultimately establish the allegations is not part of the calculus.

Rubin v. Poly Prep Country Day Sch., NY Slip Op 02339 (2d Dep't May 1, 2024)

Here is the decision.

Vacating a default.

Defendant's motion to vacate a default judgment is denied because the moving papers failed to demonstrate a reasonable excuse for the default and a meritorious defense to the action, pursuant to CPLR 5015[a]. Defendant's contention that her counsel neglected the matter does not constitute a reasonable excuse.  Defendant, who appeared pro se, did not submit any documentation that she had actually retained counsel, and no notice of appearance was ever filed. In any event, bare allegations of incompetence by counsel cannot serve as the basis to set aside a default.

Tao Liu v. Sobin Chang, NY Slip Op 02370 (1st Dep't May 2, 2024)

Here is the decision.

Service by email.

In a divorce action, Domestic Relations Law § 232 permits substituted service pursuant to CPLR 308 by court order upon a showing that personal delivery of the summons and complaint upon the defendant could not be effected despite efforts made with due diligence

Here, the plaintiff's affidavit of service shows that the defendant was served via email, rather than by personal delivery. The plaintiff failed to demonstrate that the defendant previously consented to such service. Thus, absent a court order authorizing service by email, the service was ineffective.

Rae v. Marciano, NY Slip Op 02337 (2d Dep't May 1, 2024)

Here is the decision.

Unjust enrichment.

The proposed counterclaim for unjust enrichment is barred because the parties had entered into an agreement that governed the settlement. Although a party generally does not have to elect its remedy as between unjust enrichment or breach of contract at the pleadings stage, all the rights and obligations in dispute between the parties arise from the parties' purchase and sale agreement and the settlement agreements, rendering a counterclaim for unjust enrichment inapposite to the facts.

Walsam 316 v. 316 Bowery Realty Corp. , NY Slip Op 02288 (1st Dep't April 30, 2024)

Here is the decision.

Respondeat superior.

The doctrine of respondeat superior renders a master vicariously liable for a tort committed by a servant within the scope of the servant's employment. Conversely, the general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts. The critical inquiry in determining whether there is an employment relationship depends on the degree of control exercised by the purported employer over the results produced or the means used to achieve the results. Factors relevant to assessing control include whether the worker (1) worked at his own convenience; (2) was free to engage in other employment; (3) received fringe benefits; (4) was on the employer's payroll; and (5) was on a fixed schedule. The fact that there is a contract designating a person as an independent contractor is to be considered, but it is not dispositive. Whether an actor is an independent contractor or an employee is usually a factual issue for a jury.

Brielmeier v. Leal, NY Slip Op 02163 (2d Dep't April 24, 2024)

Here is the decision.

Appellate practice.

Generally, an appeal from a final judgment brings up for review any non-final judgment or order which necessarily affects the final judgment, pursuant to CPLR 5501[a][1]. However, since no appeal lies from an order denying reargument, the order denying the plaintiff's motion for leave to reargue her opposition to the defendant's motion for summary judgment dismissing the complaint is not brought up for review. 

Rogers v. Stop & Shop Supermarket Co., LLC, NY Slip Op 02216 (2d Dep't April 24, 2024)

Here is the decision.

Proper service.

A process server's affidavit of service constitutes prima facie evidence of proper service. On a motion to vacate a default judgment under CPLR 5015(a)(4), the defendant must overcome the presumption raised by the affidavit of service. Bare and unsubstantiated denials are insufficient to rebut the presumption of service, but a sworn denial of service containing specific facts generally rebuts the presumption of proper service and necessitates an evidentiary hearing. Minor discrepancies between the appearance of the person allegedly served and the description of the person in the affidavit of service are insufficient to raise an issue of fact warranting a hearing. The discrepancies must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect.

TD Bank, N.A. v. Turbo Group, Inc., NY Slip Op 02217 (2d Dep't April 24, 2024)

Here is the decision.

Appellate practice.

A factual argument that is raised for the first time on appeal is unpreserved for appellate review.

Marcal Fin. SA v. Sutton, NY Slip Op 02258 (1st Dep't April 25, 2024)

Here is the decision.

Tax liens.

Under both the federal and state constitutions, the State may not deprive a person of property without due process of law. Both the initial notice of tax lien sale and the subsequent notice to redeem must meet constitutional due process requirements. The requirements of due process are satisfied where notice is reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Pekich v. Membreno, NY Slip Op 02206 (2d Dep't April 24, 2024)

Here is the decision.

Frivolous claims.

While public policy generally mandates free access to the courts, a party may forfeit that right if he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will.

Svatovic v. Shabot, NY Slip Op 02266 (1st Dep't April 25, 2024)

Here is the decision.

Legal Brief

Leave to amend.

The Appellate Division determined that the motion court providently denied plaintiff's motion under CPLR 3025(b) and 5015(a)(3) to amend the third amended complaint to revive previously dismissed parties and claims and to assert new claims against new parties based on newly discovered evidence. The Appellate Division has previously affirmed the dismissal of the claims which plaintiff seeks to reassert. 

Plaintiff failed to establish that the new evidence was not merely cumulative and that it would have changed the result of the motion court or the Appellate Division's previous orders. On appeal, plaintiff does not address how the new evidence fulfills the elements of any particular cause of action, nor does he provide a basis for reviving the previously dismissed claims or adding new parties and claims to this 2014 action. In addition, given the late stage in the litigation of this matter, the amendments would have necessitated no small measure of additional discovery.

Simon v. FrancInvest, S.A., NY Slip Op 02157 (1st Dep't April 23, 2024)

Here is the decision.

Legal Brief

CPLR 3215(c).

The motion  to vacate the judgment and dismiss the action against defendan-borrower as abandoned is granted. Plaintiff did not commence proceedings for entry of a judgment within one year of default, but waited almost four years to seek a default judgment, and it fails to provide sufficient cause for the delay.

Wells Fargo Bank, N.A. v. Gwebu, NY Slip Op 02160 (1st Dep't April 23, 2024)

Here is the decision.

Legal Brief

Service of process.

An objection that the summons and complaint was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within 60 days after serving the pleading, unless the court extends the time upon the ground of undue hardship.

US Bank, N.A. v. Orlando, NY Slip Op 02078 (2d Dep't April 17, 2024)

Here is the decision.

Legal Brief

Vacating a default.

Defendant sufficiently demonstrated a reasonable excuse in support of its motion to vacate the default judgment entered against it. Its counsel abandoned his duties to file an answer and respond to the default judgment motion, despite having advised defendant that he was being paid by defendant's surety to appear on defendant's behalf. The record does not indicate a pattern of willful default and neglect, and there is no claim of prejudice.

JDS Constr. Group LLC v. Copper Servs., LLC, NY Slip Op 02097 (1st Dep't April 18, 2024)

Here is the decision.

Legal Brief

Foreclosure sales.

Pursuant to CPLR 2103, parties who have appeared in an action involving the sale of real property pursuant to a judgment, and who have not waived service, are entitled to service of all papers, including a notice of sale. However, a party who defaults in appearing in a foreclosure action is not entitled to notice of a judicial sale, and, therefore, the lack of notice is not the basis for a motion to vacate and set aside a foreclosure sale.

U.S. Bank N.A. v. Ashon, NY Slip Op 0277 (2d Dep't April 17, 2024)

Here is the decision.

Legal Brief

Collateral estoppel.

Plaintiff previously litigated whether defendants were entitled to a fee in her matrimonial action. In support of her motion to vacate defendants' charging lien, plaintiff asserted that defendants' failure to present expert evidence regarding domestic abuse and the valuation of the family's closely held company constituted malpractice. At the hearing on the motion, plaintiff agreed by stipulation to withdraw with prejudice her motion to vacate the charging lien and to authorize the fee at issue to be withdrawn from counsel's Divorce IOLA account. However, in her amended complaint in this action, plaintiff reasserted the claim for malpractice. Where a client has challenged and lost on the issue of whether counsel is entitled to a fee, that determination collaterally estops a subsequent claim for legal malpractice. The resolution of the matter by stipulation does not make a difference because a withdrawal with prejudice has preclusive effect.

Rothman v. Sandra Radna, P.C., NY Slip Op 02102 (1st Dep't April 18, 2024)

Here is the decision.

Consolidation.

When one action sounds in contract and the other in tort, the court should not grant consolidation. Here, the breach of contract and fraudulent conveyance actions present different questions of law and fact. Moreover, the fraudulent conveyance action will be moot if plaintiffs fail to win the breach of contract action. Finally, the two actions are at different stages, so that consolidation would lead to a delay in trying the breach of contract action.

3B Assoc. LLC v. Ecommission Solutions, LLC, NY Slip Op 02086 (1st Dep't April 18, 2024)

Here is the decision.

Stipulations of settlement.

Stipulations of settlement are favored by the courts and are not lightly set aside.  A stipulation of settlement that is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability. The stipulation will not be vacated simply because, after the fact, a party believes that the agreement was improvident in some respect or that it constituted a bad bargain.

Tsikhiseli v. Colombo, NY Slip Op 02075 (2d Dep't April 17, 2024)

Here is the decision.

Default judgments.

The default judgment was not vacated pursuant to CPLR 5015(a)(1) because defendant failed to establish a reasonable excuse for its default. The withdrawal order at issue was properly served on the Secretary of State as defendant's agent, pursuant to LLC Law § 303[a]. The failure to keep a current address on file with the Secretary of State is not a reasonable excuse for a default. Defendant concedes that the order was sent to its representative's correct email address. The ensuing default order and judgment were mailed to defendant at its admitted address. Its failure to take any steps to vacate the default until over three months later, after its assets were restrained, is not excusable.

San-Dar Assoc. v. Corporate Habitat NY, LLC, NY Slip Op 02028 (1st Dep't April 16, 2024)

Here is the decision.

Piercing the corporate veil.

A plaintiff seeking to pierce the corporate veil must show that (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that the domination was used to commit a fraud or wrong against the plaintiff, resulting an injury to the plaintiff. In addition to complete domination of the corporation, the pleading must allege abuse of the privilege of doing business in the corporate form to perpetrate a wrong or injustice. Thus, in order to survive a motion to dismiss the complaint pursuant to CPLR 3211(a)(7), the plaintiff must allege facts that, if taken as true and accorded every favorable inference, would support a finding that the defendant abused the corporate form, such as the failure to adhere to corporate or LLC formalities, inadequate capitalization, commingling of assets, or the personal use of corporate or LLC funds.

Board of Mgrs. of the Brighton Tower II Condominium v. Brighton Bldr., LLC, NY Slip Op 01903 (2d Dep't April 10, 2024)

Here is the decision.

Contract law.

The favorable allocation of risks to one party is not an implied duty inherent in an agreement, nor would it be reasonable for a promisee to believe that allocating risks in its favor is an inherent obligation of a promisor. Any claim concerning the allocation of the risk of a plaintiff's up-front investment costs could arise only from a negotiated contractual term or some other legal basis for undertaking the obligation. 

Mayville Engg. Co., Inc. v. Peloton Interactive, Inc., NY Slip Op 01990 (1st Dep't April 11, 2024)

Here is the decision.

Appellate practice.

Rulings directed to an examination before trial, whether made upon motion papers or not, are not appealable as of right.

Ward v. City of New York, NY Slip Op 02001 (1st Dep't April 11, 2024)

Here is the decision.

Expert witnesses.

A court has the inherent power to disqualify an expert witness in order to preserve the fairness and integrity of the judicial process. Disqualification based on a conflict of interest is required when the court finds both: (1) that it was objectively reasonable for a party claiming to have initially retained the expert to conclude that a confidential relationship existed between them, and (2) that confidential or privileged information was disclosed by the party to the expert.

Here, Supreme Court providently exercised its discretion in granting the motion to disqualify plaintiff's damages expert, due to the conflict of interest created when his firm hired an employee who worked for defendants' expert during the pendency of this action. Defendants demonstrated that the employee actively participated in the preparation of defense litigation strategies. The employee admittedly reviewed and analyzed plaintiff's documents on defendants' behalf, prepared or had input in drafting documents summarizing plaintiff's financial data, and communicated with and attended meetings with defendants' counsel. Accordingly, defendants had a reasonable expectation of a confidential relationship with the employee, and confidences were actually exchanged with him, satisfying both prongs of the disqualification test.

Manna Amsterdam Ave. LLC v. West 73rd Tenants Corp., NY Slip Op 01892 (1st Dep't April 9, 2024)

Here is the decision.

Documentary evidence.

Under CPLR 3211(a)(1), dismissal based on documentary evidence is warranted only if the evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The burden is on the defendant to demonstrate that the evidence is documentary. In order to be considered documentary, the evidence must be unambiguous and of undisputed authenticity, such that it is unassailable. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, and unambiguous contracts may qualify as documentary evidence. 

7 Mansion, LLC v. Calvano, NY Slip Op 01900 (2d Dep't April 10, 2024)

Here is the decision.

Injunctions.

Supreme Court providently exercised its discretion in granting plaintiff's motion for a preliminary injunction. Contrary to defendants' contention, the motion was not one for mandatory injunctive relief, as no affirmative action was required of them. The injunction merely enjoined defendants from interfering with or diverting monies that plaintiff was contractually entitled to receive. Plaintiff established the essential element of irreparable harm with its affidavit that, unless defendants were enjoined from diverting collections to themselves, it likely would default on its obligations to its lenders and go out of business.

BFG 104 LLC v. Greenwich Business Capital, LLC, NY Slip Op 01890 (1st Dep't April 9, 2024)

Here is the decision.

SLAPP suits.

A SLAPP suit (Strategic Lawsuit Against Public Participation), typically sounding in defamation, is brought to intimidate or silence a person who has spoken out about a matter of public interest. The anti-SLAPP law, at Civil Rights Law §§ 70-a, 76-a, is designed to deter such suits and thus protect the free exercise of speech, petition, and association.

The anti-SLAPP law creates an accelerated summary dismissal procedure, which applies when a SLAPP suit defendant moves to dismiss pursuant to CPLR 3211(a)(7). Upon such a motion, the defendant bears the initial burden of showing that the action or claim actually is a SLAPP suit, pursuant to CPLR 3211[g][1]. If the defendant meets its burden, the burden shifts to the plaintiff to demonstrate that the claim has a substantial basis, which is a showing of such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact. If the claim is dismissed, the defendant recovers a mandatory award of attorneys' fees.

Karl Reeves, C.E.I.N.Y. Corp. v. Associated Newspapers, Ltd., NY Slip Op 01898 (1st Dep't April 9, 2024)

Here is the decision.

Comparative fault.

A plaintiff is no longer required to show freedom from comparative fault in establishing a prima facie case against a defendant on the issue of that defendant's liability.

Burton v. Virk, NY Slip Op 01792 (2d Dep't Apri 3, 2024)

Here is the decision.

Affirmative defenses.

The statute of limitations is an affirmative defense and, pursuant to CPLR 3211(e), it is waived unless it is raised either in a responsive pleading or by motion prior to the submission of a responsive pleading. A court may not take judicial notice, sua sponte, of the applicability of a statute of limitations if the defense has not been raised.

Associates First Capital Corp. v. Roth, NY Slip Op 01789 (2d Dep't April 3, 2024)

Here is the decision.

CPLR 214-a.

A defendant who seeks dismissal of a cause of action on the ground that it is barred by the statute of limitations bears the initial burden of demonstrating, prima facie, that the time in which to commence the action has expired. The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period.

Generally, an action to recover damages for medical malpractice "'must be commenced within two years and six months of the act, omission or failure complained of," pursuant to CPLR 214-a. However, where the action is based upon the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within two years and six months of the time the plaintiff knew or reasonably should have known of such alleged negligent act or omission, pursuant to CPLR 214-a[b].

Ciancarelli v. Timmins, NY Slip Op 01793 (2d Dep't April 3, 2024)

Here is the decision.

General releases.

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. The defendant has the initial burden of establishing that it has been released from any claims, but a signed release shifts the burden of going forward to the plaintiff to show that there has been fraud, duress, or some other fact that is sufficient to void the release. Here, the language of the release clearly and unequivocally expresses the parties' intention to relieve the defendant of liability for personal injuries sustained by the plaintiff during horseback riding lessons. In addition, the release is clear in reciting that the plaintiff was aware of the risks associated with participating in horseback riding lessons and assumed those risks.

Anthony v. Firehock, NY Slip Op 01287 (2d Dep't March 13, 2024)

Here is the decision.

Spoliation.

Plaintiff was the victim of a home invasion of his apartment in a building owned and operated by defendants. Defendants' motion to dismiss is denied, and plaintiff's cross-motion is granted to the extent that it sought a negative inference charge as a result of defendants' spoliation of the building's surveillance footage. The fact that, in response to a subpoena, defendants provided a copy of the video to the New York City Police Department, which did not retain all the footage, did not obviate defendants' responsibility to preserve the evidence.

Cabrera-Perez v. Promesa Hous. Dev. Fund Corp., NY Slip Op 01338 (1st Dep't March 14, 2024)

Here is the decision.

Appellate practice.

As the amended judgment conformed in substance to an earlier judgment entered on consent, defendant-respondent is not an aggrieved party within the meaning of CPLR 5511, and, therefore, lacks standing to appeal. Defendant-respondent did not oppose the petition to confirm the arbitration award, and did not object to entry of the judgment or amended judgment. Any contention that the amended judgment varied from what the parties agreed upon should have been addressed through a motion to vacate the judgment.

Matter of Barclays Capital Inc. v. Carreras, NY Slip Op 01336 (1st Dep't March 14, 2024)

Here is the decision.

Motions for summary judgment.

The affirmation submitted in opposition to the motion must be deemed an effort to create a feigned issue of fact, in light of the affiant's prior contradictory deposition testimony.

150A 30 St. Trust, Israel Grossman Trustee v. Barca Dev., LLC, NY Slip Op 01283 (2d Dep't March 13, 2024)

Here is the decision.

Disability discrimination claims.

A defendant will be granted summary judgment on a disability discrimination cause of action pursuant to New York City Human Rights Law where the plaintiff cannot point to any instances where similarly situated employees were treated differently. 

Rodriguez v. New York City Hous. Auth., NY Slip Op 01278 (1st Dep't March 12, 2024)

Here is the decision.

Discovery.

It is within the motion court's discretion to determine whether to impose a discovery penalty and the nature of any penalty that may be imposed.

Huili Ma v. Hui Chen, NY Slip Op 01347 (1st Dep't March 14, 2024)

Here is the decision.

Appellate practice.

The order appealed from is not appealable as of right because it was not made in an action and did not decide a motion made upon notice, pursuant to CPLR 5701[a][2].

Bartlett v. Tribeca Lending Corp., NY Slip Op 01668 (1st Dep't March 26, 2024)

Here is the decision.

"He is risen."

Vigil.

Stabat Mater.

"Quid est veritas?"

Spy Wednesday.

Contract law.

It is well-settled in New York that merger clauses preclude consideration of prior oral contracts regarding the same subject matter as the written agreement. 

Behler v. Kai-Shing Tao, NY Slip Op 01337 (1st Dep't March 14, 2024)

Here is the decision.

Appellate practice.

The defendant did not seek sanctions before the Supreme Court, and the Appellate Division declines to impose sanctions upon the plaintiffs relating to this appeal, pursuant to 22 NYCRR 130-1.1[c].

150A 30 St. Trust, Israel Grossman Trustee v. Barca Dev., LLC, NY Slip Op 01283 (2d Dep't March 13, 2024)

Here is the decision.

Palm Sunday.

Mandamus.

The extraordinary remedy of mandamus is available, in limited circumstances, only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when there is a showing of a clear legal right to the relief.

Matter of Harper v. Neary, NY Slip Op 01176 (2d Dep't March 6, 2024)

Here is the decision.

Motions for leave to renew.

The motion is denied where the movant fails to establish a reasonable justification for not having offered the alleged new facts in the original moving papers.

Mollema v. Citigroup, Inc., NY Slip Op 01281 (1st Dep't March 12, 2024)

Here is the decision.

Summary judgment.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any triable issues of fact. The failure to make a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the non-moving party, and all reasonable inferences must be resolved in favor of the non-moving party.  The court's function on a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but merely to determine whether such issues exist.

Moonilal v. Roman Catholic Church of St. Mary Gate of Heaven, NY Slip Op 01172 (2d Dep't March 6, 2024)

Here is the decision.

Appellate practice.

The record does not reflect that the defendant moved to set aside or vacate the judgment of foreclosure and sale. As a result, this fact-based argument is unpreserved.

Taylor, Bean & Whitaker Mtge. Corp. v. Daniel, NY Slip Op 01262 (1st Dep't March 7, 2024)

Here is the decision.

Artibration.

A party moving to compel arbitration, pursuant to CPLR 7503, has the burden of establishing the existence of a valid agreement.

Lisi v. Nw York Ctr. for Rehabilitation & Nursing, 01171 (2d Dep't March 6, 2024)

Here is the decision.

Guarantors' liability.

An unconditional guarantor cannot allege a mutual mistake defense regarding the underlying contracts.

Valley Natl. Bank v. TDS Cab Corp., NY Slip Op 01264 (1st Dep't March 7, 2024)

Here is the decision.

Motions to disniss.

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, as a matter of law, a defense to the action.

Cunningham v. Cunningham, NY Slip Op 01168 (2d Dep't March 6, 2024)

Here is the decision.

Summary judgment on a guaranty.

Plaintiff demonstrated entitlement to its unopposed motion for summary judgment as to liability on its claim for amounts due under defendant's guaranty by establishing the existence of an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

3 E. 54th N.Y. LLC v. Chatiris, NY Slip Op 01244 (1st Dep't March 7, 2024)

Here is the decision.

Service of process.

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 and that it has a meritorious defense. Service upon a corporation through delivery of the summons and complaint to the Secretary of State is not personal delivery to the corporation.

Borohov v. Queens Fresh Meadows, LLC, NY Slip Op 01167 (2d Dep't March 6, 2024)

Here is the decision.

Usury laws.

General Obligations Law § 5-501(2) provides that "[n]o person or corporation shall, directly or indirectly, charge, take or receive any money, goods or things in action as interest on the loan or forbearance of any money, goods or things in action at a rate exceeding the [maximum permissible interest] rate." Under General Obligations Law § 5-521(1), the defense of usury is not available to corporations, but this bar does not preclude a corporate borrower from raising the defense of criminal usury, that is, interest over 25%, in a civil action. However, civil and criminal usury laws do not apply to any loan or forbearance in the amount of $2,500,000 or more, pursuant to General Obligations Law § 5-501[6][b].

Alleon Capital Partners v. Choudhry, NY Slip Op 01165 (2d Dep't March 6, 2024)

Here is the decision.

Summary judgment on a personal guaranty.

In order to obtain summary judgment on a personal guaranty, a plaintiff must show an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

Consorcia Mgt., LLC v. Mushahwar, NY Slip Op 01156 (1st Dep't March 5, 2024)

Here is the decision.

Contract law.

A claim for reformation of a contract, including reformation based on a scrivener's error, is governed by the six-year statute of limitations, which begins to run on the date that the mistake is made, pursuant to CPLR 213[6].

NCCMI, Inc. v. Bersin Props., LLC, NY Slip Op 01161 (1st Dep't March 5, 2024)

Here is the decision.

Penal statutes and private causes of action.

A private cause of action may be implied from a penal statute only where the plaintiff is one of the class for whose particular benefit the statute was enacted. Here, the claim based on an alleged violation of the reckless endangerment statute is dismissed because the statute was enacted for the benefit of the general public, not for the particular benefit of a class to which the plaintiff belongs.

Alfonso v. Trucar Leasing Corp., NY Slip Op 01154 (1st Dep't March 5, 2024)

Here is the decision.

New York's choice of law rules.

Under New York's choice of law rules, malicious prosecution claims are governed by the law of the state where the underlying proceeding took place. Here, the arbitration that gave rise to plaintiffs' malicious prosecution claim was held in California. Therefore, the court properly applied California law, which bars plaintiffs' malicious prosecution claim because the claim arises from a contractually agreed upon arbitration.

Zeetogroup, LLC v. Baker Hostetler, LLP,  Slip Op 00992 (1st Dep't February 27, 2024)

Here is the decision.

Personal jurisdiction.

An action may be dismissed for lack of personal jurisdiction, pursuant to CPLR 3211[a][8]. The affirmative defense of lack of personal jurisdiction is waived if it is not raised in the answer or a pre-answer motion to dismiss, pursuant to CPLR 3211[e]. However, the defense is not waived if the defendant corrects the omission before the expiration of the time to amend the answer without leave of court. 

Manfredo v. 100-106 LLC, NY Slip Op 01115 (1st Dep't February 29, 2024)

Here is the decision.

Vacating a default.

A party seeking to vacate a default must establish a reasonable excuse for the default, as well as a potentially meritorious claim or defense, pursuant to CPLR 5015[a][1].

Matter of Dublin v Morris, NY Slip Op 01009 (2d Dep't February 28, 2024)

Here is the decision.

Forum non conveniens.

CPLR 327(a) codifies the common-law doctrine of forum non conveniens as follows:

"When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action."

A plaintiff's choice of forum should rarely be disturbed, even when plaintiff is not a New York resident. So, a defendant seeking dismissal on forum non conveniens grounds has a heavy burden of establishing that New York is an inconvenient forum and that a substantial nexus between New York and the action is lacking.

Bangladesh Bank v. Rizal Commercial Banking Corp., NY Slip Op 01112 (1st Dep't February 29, 2024)

Here is the decision.

Negligence claims.

In order to establish a cause of action sounding in negligence, a plaintiff must establish the existence of a duty on defendant's part to plaintiff, breach of the duty, and damages. On a claim of negligent supervision of a child, the plaintiff must establish that the defendant had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated. In order to establish a cause of action based on negligent hiring, negligent retention, or negligent supervision of an employee, it must be shown that the employer knew, or should have known, of the employee's propensity for the conduct which caused the injury. On a claim of negligent failure to warn, the plaintiff must also establish that the employer was aware of the offending employee's propensity to engage in the complained-of conduct.

Brophy v. Big Bros. Big Sisters of Am., Inc., NY Slip Op 00993 (2d Dep't February 28, 2024)

Here is the decision.

Appellate practice.

No appeal lies from an order denying reargument.

Christiana Trust v. Victor, NY Slip 00994 (2d Dep't February 24, 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, pursuant to CPLR 320[b]. In addition, 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 motions to confirm the referee's report without simultaneously asserting an affirmative objection to jurisdiction. 

U.S. Bank N.A. v. Jong Shin, NY Slip Op 01029 (2d Dep't February 28, 2024)

Here is the decision.

Motions to dismiss.

Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff's factual allegations. Here, the cause of action alleging fraud was barred by the specific terms of the contract of sale  of a commercial property. The contract of sale utterly refuted the plaintiff's factual allegations and conclusively established a defense to the complaint as a matter of law.

Arco Acquisitions, LLC v. Tiffany Plaza, LLC, NY Slip Op 00888 (2d Dep't February 21, 2024)

Here is the decision.

Contract law.

A party repudiates a contract where, before the time of performance, that party puts it out of his power to keep the agreement. Besides giving the non-repudiating party an immediate right to sue for damages for total breach, the repudiation discharges the non-repudiating party's obligations to render performance in the future. 

EPAC Tech., Inc. v. John Wiley & Sons, Inc., NY Slip Op 00933 (1st Dep't February 22, 2024)

Here is the decision.

Statutes of limitations.

An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Where the mortgage debt is accelerated, the entire balance of the debt accrues, and the statute of limitations begins to run on the entire debt.

Wilmington Trust Co. v. Yonkus, NY Slip Op 00925 (2d Dep't February 21, 2024)

Here is the decision.

Assumption of the risk.

Under the doctrine of primary assumption of risk, a voluntary participant in a sport or recreational activity is deemed to have consented to the commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of participation. As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues.

Alfieri v. State of New York, NY Slip Op 00886 (2d Dep't February 21, 2024)

Here is the decision.

Comparative negligence.

In order to be entitled to summary judgment on the issue of a defendant's liability, the plaintiff does not bear the burden of establishing the absence of his own comparative negligence.  However, the issue of the plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.

Abramov v. Martinez, NY Slip Op 00885 (2d Dep't February 21, 2024)

Here is the decision.

Leave to enter a default judgment.

Pursuant to CPLR 3215, a plaintiff moving for leave to enter a default judgment must file proof of: (1) service of the summons and the complaint; (2) the facts constituting the claim; and (3) the defendant's default. In order to successfully oppose the motion, the defendant must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action. A corporation's failure to receive copies of process served upon the Secretary of State due to a breach of its own obligation to keep a current address on file with the Secretary of State does not constitute a reasonable excuse for its delay in appearing or answering the complaint, although there is no per se rule. In determining whether a reasonable excuse was demonstrated, a court should consider, among other factors, the length of time for which the address had not been kept current.

Bachvarov v. Khaimov, NY Slip Op 00753 (2d Dep't February 14, 2024)

Here is the decision.

A school's duty of care.

A school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and it will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The duty owed derives from the simple fact that the school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians. The standard for determining whether a school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence, placed in the same situation and armed with the same information.

J.B. v. Monroe-Woodbury Cent. Sch. Dist., NY Slip Op 00752 (2d Dep't February 14, 2024)

Here is the decision.

Attorneys' fees.

Plaintiff-cooperative owner did not establish its right to recover attorneys' fees from defendants under the commercial proprietary lease. Only a prevailing party is entitled to attorneys' fees, and to prevail, the party seeking fees must be successful on the central relief sought. This determination requires an initial consideration of the true scope of the dispute being litigated, followed by a comparison of what was achieved within that scope. Where the outcome of litigation is mixed and the relief awarded is not substantially favorable to either party, neither party can claim to be the prevailing party. Here, the true scope of the dispute includes both plaintiff's claim to recover past due maintenance and defendants breach of contract and negligence counterclaims which seek to recover substantial damages resulting from plaintiff's alleged failure to address and repair the condition causing the foul odors affecting defendants' unit.

49 E. Owners Corp. v. 825 Broadway Realty, LLC, NY Slip Op 00796 (1st Dep't February 15, 2024)

Here is the decision.

Appellate practice.

In reviewing a determination made after a nonjury trial, the Appellate Division's power is as broad as that of the trial court, and it may render a judgment that it finds warranted by the facts, bearing in mind that, in a close case, the trial court had the advantage of seeing and hearing the witnesses. Where the trial court's findings of fact rest, in large measure, on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations.

Ali v. Rahaman, NY Slip Op 00751 (2d Dep't February 14, 2024)

Here is the decision.

A plaintiff's motion to proceed anonymously.

In determining whether to grant the motion, the court must use its discretion in balancing the plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to the defendant. Among the factors the court should consider are: 1) whether the plaintiff is challenging governmental activity or an individual's actions; 2) whether the plaintiff's action requires disclosure of information of the utmost intimacy; 3) whether identification would put the plaintiff or innocent third-parties at risk of suffering physical or mental injury; 4) whether the defendant would be prejudiced by allowing the plaintiff to proceed anonymously; and 5) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system.

Doe v. Mesivtha, Inc., NY Slip Op 00614 (2d Dep't February 7, 2024)

Here is the decision.

Requests to re-plead.

Plaintiffs' request to re-plead is denied, as they did not submit an amended pleading or any specific information about the nature of the proposed claims.

Rosenberg v. OSG, LLC, NY Slip Op 00691 (1st Dep't February 8, 2024)

Here is the decision.

Orders of reference.

CPLR 4313 requires that "[u]nless the order of reference otherwise provides, the referee shall forthwith notify the parties of a time and a place for the first hearing to be held." So, unless the order of reference indicates that a hearing is unnecessary, it is error for the referee to issue a report without holding a hearing on notice to the parties. Here, the defendant established that it was entitled to a hearing before the referee issued a report. Accordingly, the Supreme Court properly granted the defendant's cross-motion to reject the referee's report.

Board of Mgrs. of the Poseidon Condominium v. Costantino Prop. Mgt., LLC, NY Slip Op 00608 (2d Dep't February 7, 2024)

Here is the decision.

Indemnification.

A party's right to contractual indemnification depends upon the specific language of the contract. A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances.

Alvarenga v. Castagna Realty Co., Inc., NY Slip Op 00607 (2d Dep't February 7, 2024)

Here is the decision.

Court holiday.

Service of process.

Personal jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been complied with. Here, plaintiff's affidavit evidencing service at defendant's place of business fails to include any proof of mailing as required by CPLR 308(2), and no evidence of compliance with the mailing requirement is otherwise found in the record. Service was invalid.

Williams v. MTA Bus Co., NY Slip Op 00692 (1st Dep't February 8, 2024)

Here is the decision.

Special trial preferences.

In this personal injury action, plaintiff was allegedly injured by a fall from an elevated platform while she was performing at the Metropolitan Opera House, a venue owned and operated by defendant Metropolitan Opera Association, Inc.

Plaintiff sought a special trial preference in the interest of justice, pursuant to CPLR 3403[a][3]. In the exercise of its discretion, the court denied special trial preference, noting that while plaintiff's income decreased post-accident, it remained reasonably adequate.

White v. Metropolitan Opera Assns., Inc., NY Slip Op 00467 (1st Dep't February 1, 2024)

Here is the decision.

Contribution claims.

Purely economic loss resulting from a breach of contract does not constitute 'injury to property'" within the meaning of the contribution statute, CPLR 1401.

Harriet Tubman Gardens Apt. Corp. v. H.T. Dev. Corp., NY Slip Op 00677 (1st Dep't February 8, 2024)

Here is the decision.

The business judgment rule and coop and condo boards.

The business judgment rule is applicable to the board of directors of cooperative and condominium corporations.  Pursuant to the rule, a court should defer to the board's determination so long as the board acts for the purposes of the cooperative of condominium, within the scope of its authority and in good faith. Unequal treatment of shareholders is sufficient to overcome the directors' insulation from liability under the rule, and a director who participates in the commission of a tort committed by the board may be held individually liable.

72 Poplar Townhouse, LLC v. Board of Mgrs. of the 72 Poplar St. Condominium, NY Slip Op 00606 (2d Dep't February 7, 2024)

Here is the decision.

Summary judgment in lieu of complaint.

Because the guaranty at issue reserves to defendant guarantor all defenses that were or may be available to the guaranteed party under a complex commercial contract, it does not qualify as the type of unconditional obligation that is appropriate for treatment under CPLR 3213.

Vitol Ams. Corp. v. Targa Resources Partners LP, NY Slip Op 00466 (1st Dep't February 1, 2024)

Here is the decision.

Failure to answer.

A defendant who has failed to timely answer a complaint and who seeks leave to file a late answer must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action.

Citimortgage, Inc. v. Sparozic, NY Slip Op 00403 (2d Dep't January 31, 2024)

Here is the decision.

Court holiday.

Statutes of limitations.

A cause of action for breach of fiduciary duty based on allegations of actual fraud is subject to a six-year limitations period, except where the fraud allegation is only incidental to the claim asserted.  According to the allegations in the complaint, the sponsor's principals' actions in concealing renovation charges in common charge assessments is not incidental to the cause of action pleaded, but rather underpins it, because plaintiff alleges that the sponsor's principals fraudulently used common charges to pay for the building renovation and concealed their actions by disguising the payments as relating to maintenance and repairs. Thus, the cause of action is subject to a six-year limitations period.

Board of Mgrs. of the 443 Greenwich St. Condominium v. SGN 443 Greenwich St. Owner LLC, NY Slip Op 00450 (1st Dep't February 1, 2024)

Here is the decision.

Bicycle accidents.

A person riding a bicycle on a roadway is entitled to all the rights and bears all the responsibilities of a driver of a motor vehicle. A bicyclist is required to use reasonable care for his own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid putting himself in a dangerous position. A motorist is required to keep a reasonably vigilant lookout for bicyclists, to sound the vehicle's horn when a reasonably prudent person would do so in order to warn a bicyclist of danger, and to operate the vehicle with reasonable care to avoid colliding with anyone on the road.

Amancio-Gonzalez v. Medina, NY Slip Op 00400 (2d Dep't January 31, 2024)

Here is the decision.

Appellate practice.

A trial court's ruling on a motion to vacate a note of issue is reviewed under an abuse of discretion standard.

Oldcastle Precast, Inc. v. Steiner Bldg. NYC, LLC, NY Slip Op 00459 (1st Dep't February 1, 2024)

Here is the decision.

Alter ego/veil piercing claims.

There is no independent cause of action for veil piercing.

245 E. 19 Realty LLC v. 245 E. 19th St. Parking LLC, NY Slip Op 00368 (1st Dep't January 30, 2024)

Here is the decision.

Summary judgment.

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.  A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's prima facie burden. 

Zeldin v. Larose, NY Slip Op 00336 (2d Dep't January 24, 2024)

Here is the decision.

Appelate practice.

An argument may properly be considered for the first time on appeal if it involves no new facts other than those that already appear on the record.

Vasquez v. Manhattan Coll., NY Slip Op 00365 (1st Dep't January 25, 2024)

Here is the decision.

Leave to renew.

A motion for leave to renew a prior motion must 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," pursuant to CPLR § 2221[e].

Vasquez v. Manhattan Coll., NY Slip Op 00365 (1st Dep't January 25 2024)

Here is the decision.

Defaulting on a motion.

A party seeking to vacate a default in appearing on the return date of a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense.

Deutsche Bank Natl. Trust Co. v. Moses, NY Slip Op 00294 (2d Dep't January 24, 2024)

Here is the decision.

Proof of proper service.

A process server's affidavit of service constitutes prima facie evidence that the defendant was validly served. However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing. Bare and unsubstantiated denials of service are insufficient to rebut the presumption of proper service created by a duly executed affidavit of service, and a hearing is not required where the defendant fails to swear to specific facts rebutting the statements in the process server's affidavit.

Deutsche Bank Natl. Trust Co. v. Moses, NY Slip Op 00294 (2d Dep't January 24, 2024)

Here is the decsion.

Summary judgment.

While an affidavit is generally considered competent and sufficient evidence on a motion for summary judgment, an affidavit that is conclusory and without specific factual basis does not establish the prima facie burden of a proponent of a motion for summary judgment.

Carboni v. Alfa Romeo USA, NY Slip Op 00351 (1st Dep't January 15, 2024)

Here is the decision.

Service of process.

Valid service pursuant to CPLR 308(2) may be made by delivery of the summons to a person of suitable age and discretion at a defendant's actual place of business. There is no requirement that delivery is to someone who is somehow authorized to accept service on the defendant's behalf.

Carpio v. Morris, NY Slip Op 00293 (2d Dep't January 14, 2024)

Here is the decision.

The doctrine of res judicata.

Under the doctrine of res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if they are based upon different theories or seek a different remedy. Dismissal of a federal action without prejudice, including a dismissal on jurisdictional grounds, has no preclusive effect on a subsequent state action. However, a stipulation of discontinuance with prejudice has the same preclusive effect as a judgment on the merits. A voluntary discontinuance with prejudice is narrowly interpreted when the interests of justice or the particular equities involved warrant such an interpretation.

Busher v. Barry, NY Slip Op 00292 (2d Dep't January 24, 2024)

Here is the decision.

Motions to dismiss.

Pursuant to CPLR 3211(a)(7), the court must accept as true the facts as alleged in the pleading, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.  Where evidentiary material is considered and the motion has not been converted to one for summary judgment, the criterion is whether the non-moving party has a cause of action, not whether he has stated one.

Burton v. Porcelain, NY Slip Op 00291 (2d Dep't January 24, 2024)

Here is the decision.

Pre-action discovery.

Before an action is commenced, disclosure to aid in bringing the action, to preserve information, or to aid in arbitration may be obtained, but only by court order, pursuant to CPLR 3102[c]. In order to obtain pre-action disclosure, the petitioner must show that it has sufficient factual basis to plead a meritorious cause of action, and that the information sought is material and necessary to the actionable wrong. Pre-action disclosure is not allowed for the purpose of determing whether there are facts that can support a cause of action.

Matter of Khorassani v. Financial Indus. Regulatory Auth., NY Slip Op 00354 (1st Dep't January 25, 2023)

Here is the decision.

Landowners' duty of care.

A landowner's duty to take minimal security precautions does not extend to exterior public areas, including walkways and vestibules.

Abdulfattaah v. Riverbay Corp., NY Slip Op 00258 (1st Dep't January 23, 2024)

Here is the decision.

Summary judgment motions.

A plaintiff may use its reply affidavit to clarify an issue that was raised for the first time in opposition to its motion, but it may not use the reply to correct a defect in its prima facie case.

5AIF Sycamore 2, LLC v 201 EB Dev. III, NY Slip Op 00257 (1st Dep't January 23, 2024)

Here is the decision.

Rear-end collisions.

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. Not every rear-end collision is the exclusive fault of the trailing driver. The driver in front also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision.

Gomez v. Pechman, NY Slip Op 00182 (2d Dep't January 17, 2024)

Here is the decision.

Summary judgment motions.

Plaintiff failed to demonstrate that, pursuant to CPLR 3212 [f], the motion should be denied as premature because of facts within defendants' exclusive knowledge and control. The motion is granted.

Tour Cent. Park Inc. v. Thor 38 Park Row LLC, NY Slip Op 00252 (1st Dep't January 18, 2024)

Here is the decision.

The limitations period for breach of fiduciary duty and conversion.

The six-year statute of limitations under CPLR 213(8) applies to causes of action to recover damages for breach of fiduciary duty and conversion, since allegations of fraud are essential to, and not merely incidental to, the cause of action.

Gam v. Dvir, NY Slip Op 00181 (2d Dep't January 17, 2024)

Here is the decision.

Motions to intervene.

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."  In considering the timeliness of the motion, courts do not engage in mere mechanical measurements of time, but consider whether the delay in seeking intervention would cause a delay in resolution of the action or otherwise prejudice a party.

Countrywide Bank, FSB v. Snipes, NY Slip Op 00179 (2d Dep't January 17, 2024)

Here is the decision.

Motions to dismiss.

Further discovery is necessary in order to resolve factual questions, most notably the precise location at which the accident occurred and the party responsible for repair and maintenance. Therefore, the CPLR 3211 motion to dismiss is denied as premature.

Wright v, City of New York, NY Slip Op 00253 (1st Dep't January 18, 2024)

Here is the decision.

Legal malpractice.

In order to state a valid cause of action alleging legal malpractice, the plaintiff must plead sufficient facts to show that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.  In order to establish causation, the plaintiff must show that, but for the attorney's negligence, he would have prevailed in the underlying action or would not have incurred any damages. A defendant moving for summary judgment dismissing the cause of action has the burden of establishing prima facie that he did not fail to exercise such skill and knowledge, or that the allege departure did not proximately cause the plaintiff to sustain damages.

Amid v. Del Col, NY Slip Op 00178 (2d Dep't January 17, 2024)

Here is the decision.

Res judicata.

A claim arising subsequent to a prior action is not barred by res judicata even if the new claim is premised on facts representing a continuance of the same course of conduct.

3rd & 60th Assoc. Sub LLC v. Zavolunov, NY Slip Op 00160 (1st Dep't January 16, 2024)

Here is the decision.

Landlords' 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 the landlord's conduct giving rise to a duty. When an out-of-possession landlord retains some control and has a contractual duty to make repairs to the leased premises, the question of liability will turn on whether the injury-producing condition fell within the landlord's contractual responsibilities.

N.G. v. DRF Mgt. Corp., NY Slip Op 00065 (2d Dep't January 10, 2024)

Here is the decision.

Motions to dismiss.

While a claim of alter ego liability is fact-laden, the claim may be dismissed on a CPLR 3211 motion.

S.M. v Madura, NY Slip Op 00155 (1st Dep't January 11, 2024)

Here is the decision.

Leave to reargue.

A motion for leave to reargue must be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but may not include any matters of fact not offered on the prior motion, pursuant to CPLR 2221[d][2]. The determination to grant leave lies within the sound discretion of the motion court. The motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented.

Emigrant Bank v. Kaufman, NY Slip Op 00064 (2d Dep't January 10, 2024)

Here is the decision.

Moving for a default judgment.

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear. The motion court does not have a mandatory, ministerial duty to grant the motion, and retains the discretionary obligation to determine whether the movant has met the burden of pleading a viable cause of action. 

Cunningham v. New York City Dept. of Educ., NY Slip Op 00063 (2d Dep't January 10, 2024)

Here is the decision.

Motions for civil contempt.

The movant must establish that: (1) there was a lawful court order, clearly expressing an unequivocal mandate; (2) with knowledge of the order's terms, the order was disobeyed; and (3) the movant was prejudiced by the offending conduct. There is a showing of prejudice where the offending party's actions were calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of a party. The movant bears the burden of establishing contempt by clear and convincing evidence, and the motion is addressed to the court's sound discretion. 

Colon v. Crespo, NY Slip Op 00062 (2d Dep't January 10, 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. The plaintiff's comparative fault, or lack thereof, is not a consideration in determining whether the plaintiff has made a prima facie showing on the issue of the defendant's liability. However, the issue of the plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence and culpable conduct on the part of the plaintiff.

Ali v. Alam, NY Slip Op 00061 (2d Dep't January 10, 2024)

Here is the decision.

Municipal liability.

The City may be liable under the special relationship doctrine only if the action at issue was a ministerial one, as opposed to a discretionary one, and if the City violated a duty owed to plaintiff that is separate and apart from its duty to the public generally. It is well-settled that providing temporary housing for homeless families is a governmental function mandated by the state constitution for the benefit of the general public.

Maldonado v. Young & Booby Realty Corp., NY Slip Op 00048 (1st Dep't January 9, 2024)

Here is the decision.

CPLR 4519.

Defendant's motion in limine to bar testimony by plaintiff concerning conversations with decedent regarding her will and estate plan is granted. Plaintiff's testimony concerning conversations with decedent regarding her intention that he receive half of her estate after his divorce was final is barred by CPLR 4519, since the testimony would be offered against defendant, decedent's survivor, who derived her interest in decedent's assets from decedent.

However, CPLR 4519 does not bar the testimony of third-party witnesses concerning conversations with decedent about her will, estate plan, or the alleged oral agreement between plaintiff and defendant to transfer to plaintiff half of decedent's assets after his divorce, since the third parties do not have an interest in decedent's estate. Testimony by plaintiff concerning the alleged oral agreement is proper since those conversations do not constitute extrinsic evidence in derogation of the will and do not call into question whether the will reflected decedent's intentions. Although extrinsic evidence may not be used to challenge a clear and unambiguous will, here, the issue is whether the parties had an oral agreement that required defendant to transfer certain property or assets to plaintiff after distribution of the estate.

Castellotti v. Free, NY Slip Op 00045 (1st Dep't January 9, 2024)

Here is the decision.

Indemnification.

General Obligations Law § 5-322.1(1) allows contractual provisions requiring indemnification whether or not the promisor is partially negligent.

Shawmut Woodworking & Supply, Inc. v. Cord Contr. Co. Inc., NY Slip Op 00044 (1st Dep't January 9, 2024)

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Res judicata.

Res judicata extends to matters decided by the bankruptcy courts. Because a dismissal with prejudice is a determination on the merits for res judicata purposes, the Federal Bankruptcy Court's dismissal of the prior bankruptcy proceeding with prejudice precludes this action.

Fuschi v. JP Morgan Chase Bank, N.A., NY Slip Op 00024 (1st Dep't January 4, 2024)

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Arbitration.

The petition to confirm an arbitration award in favor of petitioner is granted, and respondent's motion to dismiss the petition and vacate the award is denied.

Respondent failed to establish any grounds for vacating the arbitration award, pursuant to CPLR 7511[b]. Respondent contends that the arbitration panel exceeded its power by hearing the parties' fee dispute because it was inextricably intertwined with her allegations of malpractice, which could not properly have been considered by the arbitrators under the Rules of the Chief Administrator of the Courts (22 NYCRR) part 137. However, the fee dispute was the only claim that was heard and resolved by the arbitration panel, which did not address respondent's conclusory malpractice allegations. Further, neither the plain terms of 22 NYCRR part 137 nor the parties' engagement letter precluded the arbitration panel from hearing and determining petitioner's claim for unpaid fees.

Matter of Barton LLP v. Maybank, NY Slip Op 00019 (1st Dep't January 4, 2024)

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Bus accidents.

In order to establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, the plaintiff must demonstrate that the movement was unusual and violent, rather than merely one of the sort of "jerks and jolts commonly experienced in city bus travel. Objective evidence of the force of the movement is needed, and the plaintiff's mere characterization of the movement as unusual and violent is insufficient. In seeking summary judgment in its favor, the common carrier has the burden of establishing, prima facie, that the movement of its vehicle was not unusual and violent.

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting transcripts of the plaintiff's testimony at her hearing pursuant to General Municipal Law § 50-h and deposition, and the bus driver's deposition testimony, which demonstrated that the movement of the bus was not unusual or violent or of a different class than the jerks and jolts commonly experienced in city bus travel. In opposition, the plaintiff failed to raise a triable issue of fact. 

Magloire v. MTA Bus Co., NY Slip Op 06733 (2d Dep't December 27, 2023)

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Fiduciary relationships.

The beneficiaries of a fiduciary relationship are entitled to rely on their fiduciary's representations and on its complete and undivided loyalty. They do not have to perform independent inquiries in order to establish reasonable reliance on their fiduciary's representations.

Chan v. Havemeyer Holdings LLC, NY Slip Op 00020 (1st Dep't January 4, 2024)

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Forum non conveniens.

Defendant-husband's cross-motion to dismiss this divorce action on forum non conveniens grounds, pursuant to CPLR 327, is granted. The parties are Brazilian citizens who were married in Brazil. The one child of the marriage is emancipated. Upon defendant's relocation by his employer, the parties lived here as a married couple for less than four years of their 20-year marriage, their child left for college soon after the parties and she moved here, and the defendant, whose work in international finance takes him around the world, has not worked or lived here since 2021.

Moreover, throughout the marriage, the parties maintained significant assets in Brazil, including a home, a real estate parcel, a stake in a real estate development company, a car, and several bank and other accounts. The defendant, who commenced a divorce action in Brazil after this action was filed, submitted the affidavit of his Brazilian attorney attesting that, pursuant to Brazilian law, Brazilian courts have exclusive jurisdiction over the distribution of those assets. The attorney further attests that, even were the New York court to issue a divorce judgment, the Brazilian property distribution issues would nevertheless have to be litigated in Brazil. Plaintiff wife's response to this point, her own unsupported assertion that the husband's and his Brazilian matrimonial counsel's description was false, based on her unspecified understanding, is meritless. Further, the plaintiff does not substantiate her assertion that discovery and litigating in Brazil are less efficient or otherwise inferior to discovery and litigating here.

Teixeira v. Teixeira, NY Slip Op 00040 (1st Dep't January 3, 2024)

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Defaults.

A party seeking to vacate a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion. 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 a delay or default resulting from law office failure. However, law office failure should not be excused where a default results not from an isolated, inadvertent mistake, but from repeated neglect, or where allegations of law office failure are vague, conclusory, and unsubstantiated.. Mere neglect is not a reasonable excuse.

Here, in support of her motion, the plaintiff' submitted affirmations of her attorney and her treating physician, but they failed to set forth a detailed and credible explanation for the plaintiff's failure to oppose the defendants' motion. The plaintiff's claim of law office failure was vague, conclusory, and constituted mere neglect, and did not establish a reasonable excuse for the default. Furthermore, the plaintiff failed to demonstrate a reasonable excuse for the lengthy delay in moving to vacate the default. 

Kyung Aye Yoon v. Haktung Lam, NY Slip Op 06731 (2d Dep't December 27, 2023)

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Personal jurisdiction.

The motion to dismiss the complaint as against this defendant is granted for lack of personal jurisdiction pursuant to CPLR 302(a)(2) because there is no evidence that the fire doors that allegedly caused decedent-plaintiff's injury were manufactured in New York. To the contrary, the testimony revealed that defendant, a company incorporated in California, never manufactured any products outside of California. Thus, defendant did not commit a tortious act within the State so as to confer jurisdiction. In addition, there is insufficient evidence of defendant's requisite minimal contacts with New York so as to comport with due process in the exercise of personal jurisdiction over it.

Redell-Witte v. Algoma Hardwoods, Inc., NY Slip Op 06826 (1st Dep't December 28, 2023)

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Discovery.

It is a fundamental principle in civil litigation that there shall be full disclosure of all matter that is material and necessary in the prosecution or defense of an action. However, a party is not entitled to unlimited, uncontrolled, and unfettered disclosure, and the supervision of discovery is left to the trial court's broad discretion. Absent an improvident exercise of that discretion, its determination will not be disturbed on appeal Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order precluding disclosure that is palpably improper in that it seeks irrelevant and/or confidential information, or is overly broad and burdensome.

Kopelevich & Feldsherova, P.C. v. Geller Law Group, P.C., NY Slip Op 06730 (2d Dep't December 27, 2023)

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Notices of claim.

A notice of claim must set forth the nature of the claim, and the time, place, and manner in which the claim arose.  Evidence extrinsic to the notice 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 set forth in the notice of claim and that change the nature of the claim or assert a new one. Contrary to the plaintiff's contention, his claim in his bill of particulars that the City created the dangerous condition asserted a new theory of affirmative negligence that was not raised in his notice of claim. Accordingly, this theory cannot be considered in evaluating the City's motion for summary judgment.

Jacobwitz v. City of New York, NY Slip Op 06729 (2d Dep't December 27, 2023)

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