A legal malpractice action.

Defendants' motion for summary judgment dismissing the complaint is granted. Defendants met their prima facie burden by submitting the affidavit of their legal expert, who averred that defendants did not depart from the applicable standard of care in prosecuting plaintiff's medical malpractice action. Defendants established that their decisions were reasonable and strategic courses of action. Plaintiff cannot show that, but for defendants' negligence, she would have obtained a verdict after trial that exceeded the settlement amount defendants negotiated.

Bet Yang v. Pagan Law Firm, P.C., NY Slip Op[ 03394 (1st Dep't June 20, 2024)

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Intentional infliction of emotional distress.

As to the claim for intentional infliction of emotional distress, plaintiff has failed to allege all elements of that claim: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. Although the complaint alleges that defendants engaged in extreme and outrageous conduct, plaintiff fails to adequately plead that defendants acted with the intent or disregard necessary to support his claim.

Furthermore, plaintiff's allegations regarding defendants' intentions and plaintiff's injuries state little more than bare legal conclusions and are not sufficiently particularized to demonstrate the required causal connection.

Zheng v. Centers Urgent Care Mgt., LLC, NY Slip Op 03395 (1st Dep't June 20, 2024)

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Appointment of a receiver.

CPLR 6401(a) permits the court, upon a motion by a person with an apparent interest in property, to appoint a temporary receiver of the property where there is danger that it will be lost, materially injured or destroyed.  The appointment of a temporary receiver is an extreme remedy resulting in the taking and withholding of possession of property from a party without an adjudication on the merits. The motion seeking the appointment should be granted only where the moving party has made a clear and convincing evidentiary showing of irreparable loss or waste to the property and that a temporary receiver is needed to protect the movant's interests.

American Cancer Socy., Inc. v. Ashby, NY Slip Op 03398 (2d Dep't June 20, 2024)

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Collateral estoppel.

The amended complaint is dismissed as barred by collateral estoppel. The allegations in plaintiff's third amended complaint in the federal action were substantially identical to her amended complaint herein. The federal action was dismissed because plaintiff failed to establish standing. She did not own the shares that were allegedly stolen; her husband did, although she claimed that she inherited those shares. The issue of plaintiff's injury was 'necessarily decided in the prior federal action between the parties, and plaintiff was granted a 'full and fair opportunity to contest' that finding.

While plaintiff brought the federal action in her capacity as representative of her husbands estate, she also brought individual claims, as she does here, and the dismissal of those individual claims bars plaintiff from relitigating those claims.

Plaintiff unpersuasively relies on the fact that the federal action was dismissed without prejudice. It is true that where a case is dismissed for lack of Article III standing, the dismissal must be without prejudice. However, that does not mean that a plaintiff may simply litigate elsewhere.

Tzanakakis v. Royce, NY Slip Op 03349 (1st Dep't June 18, 2024)

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Premises liability.

A property owner has a duty to maintain the property in a reasonably safe condition. However, the owner has no duty to protect or warn against a condition that is both open and obvious and not inherently dangerous or trivial in nature. A defendant seeking summary judgment dismissing a cause of action on the ground that an alleged defect is trivial must make a prima facie showing that the defect is physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. A defendant is considered to have constructive notice of a dangerous condition when it is visible and apparent, and has existed for a sufficient length of time prior to the accident to permit the defendant's employees to discover the condition and remedy it.

Bilancione v. Garden Homes Mgt. Corp., NY Slip Op 03157 (2d Dep't June 12, 2024)

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Appellate practice.

A notice of appeal must be filed and served within 30 days after service by a party of the order and written notice of entry, pursuant to CPLR 5513[a]; 5515[1].

Wells Fargo Bank, N.A. v. Bajana, NY Slip Op 033650 (1st Dep't June 18, 2024)

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Opposition to summary judgment.

Because plaintiff never amended his complaint to allege that defendants' counterclaims and third-party claims constituted retaliation for his complaint in this action, he may not raise those allegations in opposition to summary judgment.

Caputo v. IESI NY Corp., NY Slip Op 03227 (1st Dep't June 13, 2024)

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Unjust enrichment.

In order to prevail on an unjust enrichment claim, a party must show: (1) the defendant was enriched; (2) at plaintiff's expense;  and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered.  Here, the parties do not dispute that the elements of a cause of action for unjust enrichment are met. Indeed, the sole owner, officer, and shareholder of the two defendant companies admits that he misappropriated the funds at issue. Equity does not allow a defendant contractor to keep misappropriated funds.

Allen v. Zizzi Constr. Corp., NY Slip Op 03234 (1st Dep't June 13, 2024)

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Schools' liability.

Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. However, schools are not insurers of safety, as they cannot reasonably be expected to continuously supervise and control all movements and activities of students.

Acosta v. Yonkers Pub. Schs., NY Slip Op 03154 (2d Dep't June 12, 2024)

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Attorney-client relationships.

The court denied plaintiff's motion for summary judgment on her forfeiture of legal fees claim and granted defendant's motion for summary judgment dismissing the claim. A client may terminate the relationship with an attorney at any time, with or without cause.  Where a client discharges an attorney for cause, the attorney has no right to compensation, even where there is a specific retainer agreement.  Although a hearing is normally required to determine whether an attorney has been discharged for cause, a hearing is not required where, as here, the client did not seek termination for cause until after defendant had already completed her services and had obtained a favorable settlement for plaintiff.

Kasmin v. Josephs, NY Slip Op 03085 (1st Dep't June 6, 2024)

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Protective orders.

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.

Espinoza v. Tejeda, NY Slip Op 03031 (2d Dep't June 5, 2024)

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Premises liability.

The owner and operator of a supermarket, a place of public assembly, has a non-delegable duty to the general public to keep its premises safe. Therefore, tbe owner can be held vicariously liable for any negligence on the part of a distributor that caused the premises to be unsafe.

Poidomani v. Shop-Rite Supermarkets, Inc., NY Slip Op 03097 (1st Dep't June 6, 2024)

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Domestication and enforcement of a foreign judgment.

Plaintiff was entitled to summary judgment, pursuant to CPLR 3213 and article 53, based upon the domestication and enforcement of a foreign judgment. Plaintiff obtained the Casablanca judgment, which was affirmed by the highest court in Morocco, the Court of Cassation. The Casablanca judgment is final, conclusive, and enforceable, even if an appeal is pending and not all procedural requirements for execution abroad have been satisfied, pursuant to CPLR 5302[a][2]. Nothing about the posture of litigation in Morocco renders the judgment unenforceable.

Kotbi v. Najjar, NY Slip Op 03087 (1st Dep't June 6, 2024)

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Motions to dismiss.

 On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable theory. 'If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether the complaint has stated one.

Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., NY Slip Op 03029 (2d Dep't June 5, 2024)

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Defaulting on a summary judgment motion.

A party seeking to vacate an order entered upon a default in opposing a motion for summary judgment 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. A court has the discretion to accept law office failure as a reasonable excuse where that claim is supported by a detailed and credible explanation. Here, the plaintiff provided a reasonable excuse for her failure to submit a timely opposition to the defendant's motion. Moreover, on appeal, the defendant does not contest the Supreme Court's determination that the plaintiff established a reasonable excuse for her default in opposing the defendant's motion for summary judgment dismissing the complaint.

Charles v. Nouveau El. Indus., Inc., NY Slip Op 03027 (2d Dep't June 5, 2024)

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Condominium law.

An individual unit owner cannot withhold payment of common charges and assessments in derogation of the condominium's by-laws based on defective conditions in the unit or in the common areas, or a disagreement with actions lawfully taken by the Board of Managers.

Board of Mgrs. of Villas on the Lake Condominium v. Policicchio, NY Slip Op 03026 (2d Dep't June 5, 2024)

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Contract law.

Under long-standing rules of contract interpretation, where the terms of a contract are clear and unambiguous, the parties' intent must be found within the four corners of the contract, giving a practical interpretation to the language employed and reading the contract as a whole.  The contract must be construed in a manner which gives effect to each and every part, so as not to render any provision meaningless or without force or effect. Agreements that are negotiated at arm's length by sophisticated parties, represented by counsel, are enforced according to their plain language pursuant to New York's strong public policy favoring freedom of contract.

Matter of 195 B Owner LLC v. Anthropologie, Inc., NY Slip Op 03073 (1st Dep't June 6, 2024)

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Enforcing a guaranty.

A guaranty is a promise to fulfill the obligations of another party, and is subject to the ordinary principles of contract construction. On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

20 Rewe St. Ltd. v. Zheng, NY Slip Op 03024 (2d Dep't June 5, 2024)

Here is the decision.

Vacating a default.

A defendant moving pursuant to CPLR 5015(a)(1) to vacate a default in appearing or answering the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court.

A defendant may be entitled to relief under CPLR 317 on a showing that he did not receive actual notice of the summons and complaint in time to defend the action.

1KB & MS, LLC v. Happy Living Constr., LLC, NY Slip Op 03023 (2d Dep't June 5, 2024)

Here is the decision.

Preliminary injunctions.

The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual. In order to establish the right to a preliminary injunction, the movant must demonstrate (1) the likelihood of success on the merits; (2) irreparable injury absent the injunction; and (3) that the equities balance in the movant's favor. The decision to grant or deny provisional relief is committed to the sound discretion of the Supreme Court.

17455 128 Ave., Inc. v.HSBC Bank USA, N.A., NY Slip Op 03022 (2d Dep't June 5, 2024

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Usurious loans.

A loan that is usurious at its inception is void and unenforceable, but an obligation that is valid at its inception is not invalidated by a subsequent usurious transaction. The invalidity of the final modification does not extinguish the borrower's liability under the original contract and cannot taint the original agreement, regardless of whether the usury is criminal or civil, A one-year statute of limitations is applicable to usury actions, pursuant to CPLR 215[6].

Welz v. Brown, NY Slip Op 03021 (1st Dep't June 4, 2024)

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Landlord-tenant.

Defendant-tenant's cross-motion for summary judgment dismissing the ejectment complaint, is granted.

A landlord's mere receipt of rent checks after the purported termination of a tenancy but before commencement of the action does not alone serve to vitiate a predicate notice, especially where the landlord promptly returns the checks uncashed, or where the rent checks, although cashed, were accepted inadvertently and the landlord promptly explains the inadvertence to the tenant. However, where the landlord receives rent checks and does not immediately return them or claim and explain any inadvertence, the retention of the checks constitutes acceptance sufficient to vitiate the predicate notice.

Here, the notice purported to terminate tenant's tenancy on January 31, 2022, yet the landlord did not serve tenant with the complaint until April 22, 2022. In the meantime, tenant tendered rent checks for February, March, and April, all dated before service of the complaint. Moreover, landlord's managing member acknowledged receiving the rent checks contemporaneously but admitted that landlord did not return the checks until June 3, 2022.

Landlord argues that it informed tenant in December 2021 that it would not accept payment after termination of the tenancy at the end of January 2022. Landlord also argues that it never sent tenant a rent bill or an offer to renew the lease. Significantly, however, landlord's managing member does not give any explanation as to why landlord delayed in returning the checks until June 2022. Thus, the receipt and retention of multiple rent checks for several months, without explanation, vitiated the predicate notices.

591 Realty LLC v. Curanaj, NY Slip Op 03007 (1st Dep't June 4, 2024)

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Appellate practice.

Only an aggrieved party or a person substituted for him may appeal from an appealable judgment, order, or final order, pursuant to CPLR 5511. A person is aggrieved when he asks for relief but that relief is denied in whole or in part, or when someone asks for relief against him, which the person opposes, and the relief is granted in whole or in part.

Matter of Rooney v. Salem, NY Slip Op 03006 (2d Dep't June 3, 2024)

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Cross motions.

The plain language of CPLR 2215 states that where a litigant cross-moves, it may request "alternative" or "different types" of relief, and the "relief need not be responsive to that demanded by the moving party."

Starr Indem. & Liab. Co. v. Monte Carlo, LLC, NY Slip Op 02999 (1st Dep't May 30, 2024)

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1944.

Premises liability.

The owners of a private residential apartment have no duty to conduct periodic inspections of the fixtures in the apartment.

Albert M. Watson Photography Inc. v, Kartheiser, NY Slip Op 03003 (1st Depot May 30, 2024)

Here is the decision.

Motion for a renewal judgment.

The plaintiff failed to establish its prima facie entitlement to a renewal judgment, as it did not submit evidentiary proof that it was the assignee of the original judgment creditor prior to the commencement of this action, pursuant to CPLR 5014[1]. The affidavit of the plaintiff's president, submitted in support of the motion, fails to establish the date and circumstances of the assignment, if any, of the original judgment.

Accounts Retrievable Sys., LLC v. McKiernan, NY Slip Op 02899 (2d Dep't May 29, 2024)

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Contract law.

Once the contractual cure period ended without a cure, the event of default became "continuing,"

Matter of Citibank, N.A. v. N/A, NY Slip Op 02975 (1st Depot May 430, 2024)

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Defaults.

Pursuant to CPLR 317, a defaulting defendant who was served with a summons other than by personal delivery may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense.  A motion pursuant to CPLR 3012(d) to extend the time to answer the complaint requires the movant to establish a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action,

Funding NY , LLC v. 1237 Dean Street Corp., NY Slip Op 02904 (2d Dep't May 29, 2024)

Here is the decision.

Appellate practice.

On appeal, the record relied upon by the plaintiff does not include various papers relied upon by the Supreme Court, including the pleadings or any of the other papers submitted in support of, or in opposition to, the defendant's motion for summary judgment. Since these omissions have rendered meaningful review of the court's order virtually impossible, dismissal of the appeal is the appropriate disposition.

Fitzpatrick v. Affairs & Banquets Floral Servs., Inc., NY Slip Op 02798 (2d Dep't May 22, 2024)

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