Spousal privilege.

A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage, pursuant to CPLR 4502[b]. While not all spousal communications are privileged, confidential communications induced by the marital relation and prompted by the affection, confidence, and loyalty engendered by the relationship are. In making this determination, spousal communications are presumed to have been conducted under the mantle of confidentiality, and the burden is on the party seeking to overcome the privilege to demonstrate that the communications were not made in confidence. 

There is neither a legal nor a practical basis for finding that one spouse's discussion of what is happening at work would automatically destroy the spousal privilege. Indeed, many conversations about business matters are only had because of the husband-wife relationship.

Smartmatic USA Corp. v. Fox Corp., NY Slip Op 02882 (1st Dep't May 23, 2024)

Here is the decision.

Res judicata.

Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based upon the doctrine of res judicata. Thet doctrine precludes a party from litigating a 'claim where there is a judgment on the merits from a prior action between the same parties, involving the same subject matter. Generally, a dismissal for failure to state a cause of action based on the insufficiency of the allegations in the pleading is not a dismissal on the merits, and does not bar the adequate repleading of the claim in a subsequent action. However, such a determination has a preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission in the earlier complaint.

Ciafone v. City of New York, NY Slip Op 02795 (2d Dep't May 22, 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 should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances.

Alfieri v. ABB, Inc., NY Slip Op 02792 (2d Dep't May 22, 2024)

Here is the decision.

Storm-in-progress rule.

Under the storm-in-progress rule, a property owner or a tenant in possession will not be held responsible for accidents caused by snow or ice that accumulates during a storm until an adequate period of time has passed following the cessation of the storm to allow an opportunity to ameliorate the hazards caused by the storm. However, once a landowner or a tenant in possession undertakes snow removal during a storm in progress, it must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm. The mere failure of a defendant to remove all the snow and ice, without more, does not establish that the defendant increased the risk of harm.

Corlette v. SN Auto Repairs, Inc., NY Slip Op 02685 (2d Dep't May 15, 2024)

Here is the decision.

Memorial Day

Memorial Weekend

Memorial Weekend

Memorial Weekend

Summary judgment.

A motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.

Smith-Joyner v. Barahona, NY Slip Op 02718 (2d Dep't May 18, 2024)

Here is the decision.

Forum selection clauses.

The documentary evidence conclusively demonstrates that plaintiff's employment contract with defendants contained a forum selection clause mandating that her action seeking unpaid commissions be brought in Connecticut. Plaintiff does not argue that the clause is unreasonable, unjust, or invalid because of fraud or overreaching. Instead, plaintiff argues that the forum selection clause is contained in a separate contract and, therefore, is inapplicable to her claim for unpaid commissions. That argument is to no effect. All parts of the employment contract were signed by the parties at the same time and involve the same subject matter, namely, the terms and conditions of plaintiff's employment. Thus, the forum selection clause is applicable to plaintiff's action seeking unpaid commissions pursuant to the New York Labor Law.

Kravitz v. Chicken Soup for the Soul, LLC, NY Slip Op 02664 (1st Dep't May 14, 2024)

Here is the decision.

Constructive fraud.

A claim for constructive fraud is governed by a six-year statute of limitations, and arises at the time the fraud or conveyance occurs, pursuant to CPLR 213[1].

Patterson Belknap Webb & Tyler LLP v. Marcus & Cinelli LLP, NY Slip Op 02670 (1st Dep't May 14, 2024)

Here is the decision.

Service of process.

At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence. In reviewing a determination made after a hearing, the Appellate Division's authority is as broad as that of the hearing court, and it may render the determination it finds warranted by the facts, taking into account that, in a close case, the hearing court had the advantage of seeing the witnesses.

Bohensky v. 1670 42nd St., LLC, NY Slip Op 02682 (2d Dep't May 15, 2024)

Here is the decision.

Premises liability.

A property owner will not be held liable for injuries sustained from a condition on the property which is inherent or incidental to the nature of the property and which could reasonably be anticipated by those using it. Here, the plaintiff fell in an area of a municipal park which was characterized by reed beds and which was not intended to be a public walkway. The County established, prima facie, that the condition that caused the plaintiff's fall was incidental to the nature of the property and could reasonably have been anticipated in that location.  In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the discovery allegedly provided by the County after the summary judgment motion was fully submitted did not require denial of the summary judgment motion, as the plaintiff failed to demonstrate that the facts contained in that discovery were relevant or exclusively within the knowledge and control of the County. 

Claus v. County of Nassau, NY Slip Op 02518 (2d Dep't May 8, 2024)

Here is the decision.

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.