Contract law.

The elements of a cause of action for tortious interference with a contract are (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procurement of a third-party's breach of that contract without justification; and (4) damages. The plaintiff must further allege facts that are sufficient to show that the contract would not have been breached but for the defendant's conduct.

Plymouth Capital, LLC v. Montage Fin. Group, Inc., NY Slip Op 04583 (2d Dep't September 25, 2024)

Here is the decision.

Warranty of habitability.

The breach of the warranty of habitability counterclaim was dismissed because it only applies to a tenant living in the apartment, not a commercial tenant like defendants.

20 Broad St. Owner, LLC v. Sonder USA, Inc., NY Slip Op 04591 (1st Dep't September 26, 2024)

Here is the decision.

Vacatur of a default.

The Appellate Division affirmed the denial of defendants motion to vacate the default judgment.Contrary to defendants' contention that the action should be dismissed under CPLR 306-b, the summons and complaint were timely served considering the executive orders tolling the time limit for service of process during the COVID-19 pandemic.

Supreme Court providently declined to vacate the default under CPLR 317 where service of process on corporate defendants was properly made by means of service upon the Secretary of State, and defendants failed to demonstrate lack of actual notice of the action. Defendants' sworn admission of their awareness of plaintiff's lawsuit, and their subsequent participation in settlement negotiations, manifests actual notice of the action. 

Supreme Court providently denied defendants' motion under CPLR 5015(a)(1) for failure to provide a reasonable excuse for their default. Defendants' denials of receipt of service, without proof, fall short of creating reasonable excuse. Furthermore, defendants' claim that the parties were involved in settlement negotiations does not constitute a reasonable excuse.

4CS Ltd v Kahiri Diamonds Ltd, NY Slip Op 04513 (1sr Dep't September 24, 2024)

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Change of venue.

A demand to change venue based upon the designation of an improper county must be "served with the answer or before the answer is served," pursuant to CPLR 511[a]. Here, since no demand to change venue was served with the answer or before the answer had been served, that branch of the defendants' motion which was to change venue on the ground that the county designated was improper, pursuant to CPLR 510[1], was untimely. The defendants were not entitled to change venue as of right, and their motion became one addressed to the Supreme Court's discretion. The Supreme Court improvidently exercised its discretion in granting that branch of their motion which was to change venue, since the defendants failed to demonstrate that they moved promptly for a change of venue after the plaintiff testified at his deposition that he lived at an address in Richmond County.

Aguilar v. Reback, NY Slip Op 04444 (2d Dep't September 18, 2024)

Here is the decision.

Fraud by omission.

Fraud by omission claims that are not supported by a duty to speak will be dismissed.

Solidx Mgt., LLC v. Vaneck Sec. Corp., NY Slip Op 04489 (1st Dep't September 19, 2024)

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Motions to dismiss.

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 a defense as a matter of law.

Adelson v. Sharkey, NY Slip Op 04443 (2d Dep't September 18, 2024)

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Service on a corporation.

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

Here, the defendant established its entitlement to relief from its default under CPLR 317 by demonstrating that the address on file with the Secretary of State at the time the summons and complaint were served was incorrect and, consequently, that it did not receive actual notice of the action in time to defend itself. Further, the evidence does not suggest that the defendant's failure to update its address with the Secretary of State constituted a deliberate attempt to avoid service of process, and there is some evidence in the record suggesting that the plaintiff had knowledge of the defendant's actual business address.

In addition, the defendant demonstrated the existence of potentially meritorious defenses to the causes of action, including a defense based on the general release that terminated the earlier action.

Galatro v. Lake Pointe Owners, Inc., NY Slip Op 04375 (2d Dep't September 11, 2024)

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Expert opinions.

An expert's competence in a particular subject may derive from long observation and real-world experience, and is not dependent on formal training or having an academic degree in the subject. Where the expert's factual conclusions partially contradict a plaintiff's deposition testimony, the expert opinion is still sufficient to defeat summary judgment where the opinion is based on other record evidence and is neither speculative nor conclusory.

Cameron v. Palmeri, NY Slip Op 04371 (2d Dep't September 11, 2024)

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Premises liability.

In a premises liability case, the defendant can establish prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of an injury without engaging in speculation.  However, in order to withstand summary judgment, the plaintiff need only raise a triable issue of fact regarding whether defendant's conduct proximately caused plaintiff's injuries.

Here, the defendant met the prima facie burden by submitting the reports of two fire departments, which determined that the cause of the fire at issue was undetermined. However, in opposition, the plaintiff raised a triable issue of fact as to the cause of the fire by submitting an expert' opinion as to the area of the fire origin and that the electrical wiring was the cause of the fire. The opinion was amply supported by the record and was neither speculative nor conclusory. 

Further, the defendant failed to establish, prima facie, that the plaintiff's conduct was a superseding cause of the injuries. The plaintiff's decision to enter the home to put out a fire that he reasonably believed was contained to just the portion of the AC unit that was outside the home was not so obviously fraught with danger that its very nature evidences a wanton disregard for the actor's own personal safety or well-being.

Cameron v. Palmeri, NY Slip Op 04371 (2d Dep't September 11, 2024)

Here is the decision.

Negligence actions.

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 it is for the trier of fact to determine the issue of proximate cause. However, proximate cause may determined as a matter of law where the defendant's negligence merely created the opportunity for, but did not cause, the event that resulted in harm to the plaintiff.

Bristol v, Biser, NY Slip Op 04370 (2d Dep't September 11, 2024)

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Laches.

Laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party. In order to establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of; (2) delay by the complainant in asserting a claim for relief despite the opportunity to do so; (3) lack of knowledge or notice on the part of the offending party that the complainant would assert a claim for relief; and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant. Here, the defendant established that the plaintiffs' more than 10-year delay in seeking to void the defendant's mortgage, together with the prejudice to him by the delay, as he relied on the mortgage as payment for his legal services, warranted application of the doctrine of laches.  The defendant's motion to dismiss the complaint is granted.

Bricker v. Ole Thorsen, NY Slip Op 04369 (2d Dep't September 11, 2024)

Here is the decision.

Vacatur.

CPLR 5015(a)(1) permits the vacatur of an order rendered as a result of excusable default.  Bare allegations of law office failure are insufficient to warrant vacatur.

Bengas v. Ardsley Country Club, Inc., NY Slip Op 04368 (2d Dep't September 11, 2024)

Here is the decision.

Slips-and-falls.

In a slip-and-fall case, the defendant property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence.. In order to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it.  In order to meet its prima facie burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.

Arbit v. Costco Wholesale Corp., NY Slip Op 04366 (2d Dep't September 11, 2024)

Here is the decision.

Discovery disputes.

Before contacting the court regarding a discovery dispute, counsel must consult with one another, in good faith, either in-person or by telephone. If the dispute cannot be resolved other than through motion practice, there must be a supporting affidavit or affirmation attesting to counsel having conducted an in-person or telephonic conference, setting forth the date and time, persons participating, and the length of time of the conference.

Bayview Loan Servicing, LLC v. Evanson, NY Slip Op 04367 (2d Dep't September 11, 2024)

Here is the decision.

The covenant of good faith and fair dealing.

Plaintiff alleges not only breach of contract through failure to meet financial obligations, but, separately, a scheme to divest plaintiff of its interest in the loan at issue by purchasing and foreclosing on a senior loan. Accordingly, plaintiff has stated a claim for breach of the covenant of good faith and fair dealing, which is not duplicative of its contract claim.

Ria R Squared, Inc. v. WD Partners, LP, NY Slip Op 04363 (1st Dep't September 5, 2024)

Here is the decision.

Applicability of the relation-back doctrine.

Application of the doctrine is proper where, as here, a new action has been commenced and consolidated with a prior action. Its application is not limited to those instances where the plaintiff is seeking an amendment of the complaint in the original action. The doctrine may be applied if the party was identified in the prior action but not made a party to that action owing to the plaintiff's failure to comply with the technical requirements for commencing an action.

Picchioni v. Sabur, NY Slip Op 04362 (1st Dep't September 5, 2024)

Here is the decision.

Statutory interpretation.

When presented with a question of statutory interpretation, the court's primary consideration is to ascertain and give effect to the intention of the Legislature. Since the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. Further, a statute must be construed as a whole, and its various sections must be considered together and with reference to each other.

Matter of Winter v. Luft, NY Slip Op 04364 (2d Dep't September 6, 2024)

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Contract law.

Unambiguous terms of an agreement between sophisticated parties must be enforced pursuant to their plain meaning. unless it would produce a result that is absurd, commercially unreasonable, or contrary to the reasonable expectations of the parties.

GCA Advisors, LLC v. Intersections, Inc., NY Slip Op 04359 (1st Dep't September 5, 2024)

Here is the decision.

Discovery disputes.

The resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is left to the sound discretion of the motion court. Actions should be resolved on their merits whenever possible, and the drastic remedy of striking a pleading or the alternative remedy of precluding evidence should not be employed without a clear showing that the failure to comply with court-ordered discovery was willful and contumacious.

Edwards v. Freedom Church of Revelation, NY Slip Op 04305 (2d Dep't August 28, 2024)

Here is the decision.

Foreclosing a mortgage.

In moving for summary judgment in an action to foreclose a mortgage, the plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default. The plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law. The plaintiff can establish a default by submitting an affidavit from a person having personal knowledge of the facts or other evidence in admissible form. The business record exception to the hearsay rule applies to a writing or record, pursuant to CPLR 4518[a], and it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Without the introduction of the records themselves, a witness's testimony as to the contents of the records is inadmissible hearsay.

Deutsche Bank Natl. Trust Co. v. Pirozzi, NY Slip Op 04304 (2d Dep't August 28, 2024)

Here is the decision.

Finding a pharmacy negligent.

When a pharmacist has demonstrated that he did not undertake to exercise any independent professional judgment in filling and dispensing prescription medication, the pharmacist cannot be held liable for negligence in the absence of evidence that failed to fill the prescription precisely as directed by the prescribing physician or that the prescription was so clearly contraindicated that ordinary prudence required the pharmacist to take additional measures before dispensing the medication. Here, the complaint does not allege that the pharmacy exercised independent professional judgment or that it did not fill the prescriptions as directed. Nevertheless, accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently alleges that the prescriptions were so clearly contraindicated that ordinary prudence required the pharmacy to take additional measures before dispensing the medication. The motion to dismiss is denied.

Bistrian v. Gibson, NY Slip Op 04303 (2d Dep't August 28, 2024)

Here is the decision.

Unsworn submissions.

The unsworn expert report submitted by the defendant in support of his motion for summary judgment dismissing the complaint was insufficient to meet his prima facie burden, pursuant to CPLR 2106 and 3212[b].

Beier v. Giglio, NY Slip Op 04302 (2d Dep't August 28, 2024)

Here is the decision.

Premises liability.

Property owners have a common-law duty to maintain property in a reasonably safe condition, but there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident. However, a condition that is ordinarily apparent to a person making reasonable use of his senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted.

Beier v. Giglio, NY Slip Op 04302 (2d Dep't August 28, 2024)

Here is the decision.

Federal preemption.

Federal preemption is based on the US Constitution's Supremacy Clause. The issue of federal preemption is a question of law,  since it concerns whether, as a matter of statutory interpretation, Congress has enacted a law for which a particular state rule is to the contrary. The inquiry into the scope of a statute's preemptive effect is guided by the rule that the purpose of Congress is the ultimate touchstone in every preemption case. If the statute at issue contains an express preemption clause, the task of statutory construction must, in the first instance, focus on the plain wording of the clause, which necessarily contains the best evidence of Congress's preemptive intent.

Malerba v. New York City Tr. Auth., NY Slip Op 04344 (1st Dep't August 29, 2024)

Here is the decision.

Recovery in tort against a municipality.

Persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim within 90 days after the claim arises. Pursuant to General Municipal Law § 50-e(2), the notice must set forth the nature of the claim, and the time, place, and manner in which the claim arose. The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the public entity to locate the place, fix the time, and understand the nature of the accident. Claims of roadway, sidewalk, or similar defects must be set forth with great specificity because of their transitory nature.   A court determining a motion to dismiss a complaint on the ground that the notice of claim is insufficient must examine the four corners of the notice, and may consider the testimony provided during an examination pursuant to General Municipal Law § 50-h, as well as any other evidence properly before the court. However, this evidence 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 directly or indirectly mentioned in the notice of claim and that change the nature of the claim or assert a new one.

Behrens v. Town of Huntington, NY Slip Op 04301 (2d Dep't August 28, 2024)

Here is the decision.

Commencing a foreclosure action.

Strict compliance with RPAPL 1304 providing notice to the borrower is a condition precedent to the commencement of a foreclosure action.  Pursuant to the statute, notice must be sent "by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage." A plaintiff demonstrates statutory compliance by submitting proof of the actual mailings or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure.

Bank of Am., N.A. v. Sach, NY Sli[p Op 04300 (2d Dep't August 28, 2024)

Here is the decision.

Premises liability.

In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous condition nor had actual or constructive notice of its existence. In order to meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.  Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice. However, in order to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it. When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.

K. B. v. City of Mount Vernon, NY Slip Op 04299 (2d Dep't August 28, 2024)

Here is the decision.

Equitable distribution of marital property.

A trial court is vested with broad discretion in making an equitable distribution of marital property, and, unless it is shown that the court improvidently exercised that discretion, its determination should not be disturbed on appeal. Equitable distribution is based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner, or homemaker. The distribution of marital assets depends not only on the financial contribution of the parties but also on a wide range of non-remunerated things such as homemaking, raising children, and the providing of the emotional and moral support necessary to sustain the other spouse in coping with matters outside the home.

Albano v. Albano, NY Slip Op 04298 (2d Dep't August 28, 2024)

Here is the decision.

Evidentiary rulings.

Trial courts are accorded wide discretion in making evidentiary rulings, and those rulings should not be disturbed on appeal absent an improvident exercise of discretion or a showing of prejudice to a substantial right, pursuant to CPLR 2002.

6 Harbor Park Dr., LLC v. Town of N. Hempstead, NY Slip Op 04297 (2d Dep't August 28, 2024)

Here is the decision.

Running a light.

A driver who enters an intersection against a red traffic light in violation of Vehicle and Traffic Law § 1110(a) is negligent as a matter of law. Here, the plaintiff established prima facie entitlement to judgment as a matter of law by submitting a transcript of his deposition testimony, which demonstrated that he proceeded through the intersection with a green traffic light and that the defendant's conduct was the sole proximate cause of the accident, as the defendant entered the intersection against a red traffic light. In opposition, however, the defendant raised a triable issue of fact by submitting a transcript of his deposition testimony, wherein he averred that when he entered the intersection, the traffic light was green in his favor, and further averred that he stopped fully before the plaintiff's vehicle struck the defendant's vehicle.  The plaintiff's motion for summary judgment on the issue of liability is denied.

Degachi v Faridi, NY Slip Op 04241 (2d Dep't August 21, 2024)

Here is the decision.