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)

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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)

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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)

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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)

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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)

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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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the granted.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.