Confirming a referee's report.

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

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

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

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

Here is the decision.

Motor vehicle accidents.

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he was not at fault in the happening of the accident. There can be more than one proximate cause of an accident, and a defendant moving for summary judgment must show that he is free from fault. Pursuant to Vehicle and Traffic Law § 1214, "[n]o person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic."

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

Here is the decision.

Extending time to commence an action.

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

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

Here is the decision.

The doctrine of primary jurisdiction.

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

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

Here is the decision.

Statute of frauds.

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

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

Here is the decision.

Judgments of foreclosure and sale.

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

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

Here is the decision.

Default judgments.

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

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

Here is the decision.

Summary judgment In a slip-and-fall action.

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

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

Here is the decision.

Employment Law.

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

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

Here is the decision.

Good faith and fair dealing.

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

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

Here is the decision.

Statute of limitations.

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

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

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

Here is the decision.

Service of process.

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

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

Here is the decision.

Summary judgment.

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

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

Here is the decision.

Discretionary vacatur.

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

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

Here is the decision.

Personal jurisdiction.

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

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

Here is the decision.

Leave to reargue.

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

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

Here is the decision.

CPLR 3216.

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

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

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

Here is the decision.

Summary judgment.

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

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

Here is the decision.

Slips-and-falls.

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

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

Here is the decision.

Adverse possession.

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

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

Here is the decision.

Attorney discipline.

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

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

Here is the decision.

Admissibility of business records.

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

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

Here is the decision.

Pleading negligence.

A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. An affidavit that raises only a feigned issue of fact is insufficient to defeat the motion.

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

Here is the decision.

Labor Law § 240(1).

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

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

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

Here is the decision.

Opinion evidence.

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

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

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

Here is the decision.

Vacating a default.

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

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

Here is the decision.

Employment law.

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

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

Here is the decision.

Contract law.

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

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

Here is the decision.

Motions to extend time.

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

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

Here is the decision.

Landlord-tenant law.

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

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

Here is the decision.

Liability on a personal guaranty

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

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

Here is the decision.