The standard for a court's finding of neglect based on domestic violence against a child's mother is preponderance of the evidence, pursuant to Family Court Act §§ 1012[e][iii].
Matter of A.A. (Carlos B.), NY Slip Op 05822 (1st Dep't November 21, 2024)
While Business Corporations Law § 626(e) provides that a successful plaintiff in a shareholders' derivative action may recoup legal expenses and attorneys' fees from the proceeds of a judgment, compromise, or settlement in favor of the corporation, it does not authorize the imposition of such expenses on the losing party. Here, the cause of action for attorneys' fees is dismissed.
Schmidt v. Board of Directors of Duane Owners, Inc., NY Slip Op 05778 (1st Dep't November 19, 2024)
There is no appeal from a court's comments that are dicta.
Matter of Johnson, NY Slip Op 05768 (1st Dep't November 19, 2024)
While a plaintiff is not required to establish freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a 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.
Houston v. McQuiller, NY Slip Op 05594 (2d Dep't November 13, 2024)
While the motion court purportedly denied the motion for reargument, it effectively granted the motion by addressing the merits. Accordingly, the order is appealable, pursuant to CPLR 5701[a][2][viii].
Pierre v. City of New York, NY Slip Op 05652 (1st Dep't November 14, 2024)
Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126. A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense.
Myung Ja Wang. v. New York City Tr. Auth., NY Slip Op 05591 (2d Dep't November 13, 2024)
A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated, pursuant to CPLR 3212[f]. This is especially so where the motion for summary judgment was made prior to the parties conducting depositions.
Kharyshyn v. West End 82, LLC, NY Slip Op 05586 (2d Dep't November 13, 2024)
Plaintiff's appeal of the judgment does not bring up for review the motion court's prior order, granting summary judgment for the individual defendants, as it was a final order that dismissed all claims asserted against them as guarantors of the tenant's lease obligations. The subsequent entry of judgment was a mere ministerial act that did not excuse plaintiff's failure to file a notice of appeal of the summary judgment order.
Roc-Le Triomphe Assoc., LLC v. DeSouza, NY Slip Op 05644 (1st Dep't November 14, 2024)
The motion to dismiss did not violate the single motion rule, pursuant to CPLR 3211[e], because defendants' prior motion to dismiss was not decided on the merits.
2497 Realty Corp. v. Fuertes, NY Slip Op 05624 (1st Dep't November 14, 2024)
Pursuant to CPLR 3211(a)(2), a party may move to dismiss a cause of action on the ground that the court lacks subject matter jurisdiction. The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is a substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs. However, civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution. Here, the defendants failed to demonstrate that the causes of action alleging negligence and negligent hiring, retention, and supervision insofar as asserted against them cannot be determined solely upon the application of neutral principles of law, without reference to religious principles.
On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a 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. Pursuant to CPLR 3211(a)(1), dismissal is warranted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.
Escobar v. Segunda Iglesia Pentecostal Juan 3:16 Asamblea de Dios, NY Slip Op 05583 (2d Dep't November 13, 2024)
The motion court providently exercised its discretion in denying defendant's motion for a further extension of the deadline for filing the note of issue, taking into account the length of time the action had been pending, the multiple extensions that had already been granted, and the need to avoid undue delay. Notably, after the Appellate Division granted the parties an additional 60 days to complete discovery, the motion court granted another extension of about five months to complete discovery and file the note of issue. Although the motion court's order marked that deadline as "final" and stated that no further extensions would be granted without a showing that "formal efforts" had been made to compel outstanding discovery from third parties, defendant canceled a scheduled deposition of third-party witnesses and did not move to compel discovery from them.
As to the motion to vacate the note of issue, defendant failed to show that any unusual or unanticipated circumstances requiring additional discovery developed after the filing of the note of issue, pursuant to 22 NYCRR 202.21[d].
361 Broadway Assoc. Holdings, LLC v. Foundations Group I, Inc., NY Slip Op 05550 (1st Dep't November 12, 2024)
Licensing agreements that provide for stipulated guaranteed minimum royalty payments that accelerate on breach are enforceable as written and for the amount set forth, without regard to mitigation, setoff, or other post-breach developments.
AL Infinity LLC v Innovative Concepts & Design, LLC, NY Slip Op 05475 (1st Dep't November 7, 2024)
Pursuant to RPAPL 1311 (1) the necessary defendants to a foreclosure action are "[e]very person having an estate or interest in possession, or otherwise, in the property as tenant in fee, for life, by the curtesy, or for years, and every person entitled to the reversion, remainder, or inheritance of the real property, or of any interest therein or undivided share thereof, after the determination of a particular estate therein." Where a property owner dies intestate, title to real property is automatically vested in the decedent's distributees.
Wilmington Sav. Fund Socy. v. Jsang Kei Lau, NY Slip Op 05504 (1st Dep't November 6, 2024)
Vehicle and Traffic Law § 388(1) provides that, with the exception of commercial lessors of motor vehicles, which are exempt from vicarious liability under federal law, the owner of a motor vehicle is liable for the negligence of one who operates the vehicle with the owner's express or implied consent. The statute creates a presumption that the driver was using the vehicle with the owner's express or implied permission, which may be rebutted only by substantial evidence sufficient to show that the vehicle was not operated with the owner's consent. Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use. However, the uncontradicted testimony of a vehicle owner or a vehicle owner's employee that a vehicle was operated without the owner's permission does not, by itself, overcome the statutory presumption of permissive use.
Dombalic v. Cornelius, NY Slip Op 05434 (2d Dep't November 6, 2024)
Defendant's motion to dismiss the complaint for lack of personal jurisdiction is denied. Plaintiff landlord's properly executed affidavit of service constituted prima facie evidence of proper service of the summons and complaint upon defendant-lease guarantor. The affidavit of service attests to attempted personal service upon defendant on three separate dates and times at a nightclub business address that defendant designated for notice purposes in connection with his execution of the lease guaranty. On the fourth service attempt, the process server resorted to affix and mail service, pursuant to CPLR 308[4].
Defendant argues that because of the Covid lockdown and the nightclub's temporary closure, the nightclub address could no longer be deemed his actual place of business, and that service at that location did not afford him with reasonable notice of the action against him for purposes of acquiring personal jurisdiction. However, because defendant designated the nightclub address as his business address for notice purposes under the guaranty, he may not now reasonably claim he was not properly served. In addition, defendant had a contractual duty under the guaranty to keep the landlord apprised of a current address for receipt of notices in connection with the guaranty, and he never changed the address.
Accordingly, defendant's mere denial of receipt of process fails to rebut the presumption of proper service created by the affidavit of service.
Amcojor Realty Corp. v. Butter Mgt. LLC, NY Slip Op 05476 (1st Dep't November 7, 2024)
The drastic remedy of striking a pleading is not warranted where the motion court does not find a long-standing pattern of willful or contumacious failure to comply with discovery demands or orders, pursuant to CPLR 3126.
Farrell Limousine Serv. LLC v. Macro Consultants, LLC, NY Slip Op 05402 (1st Dep't October 31, 2024)
The plaintiff contends that the submissions of the building defendants and the purchaser defendants were insufficient to demonstrate that the building defendants complied with various notice requirements prior to the auction transferring the plaintiff's proprietary lease and shares of stock in the subject apartment. This contention, however, was not raised in opposition to the separate motions of the building defendants and the purchaser defendants. Instead, the plaintiff improperly raised this contention for the first time on appeal, and, therefore, it is not properly before the Appellate Division.
Cobb v. 1710 Carroll Owners Corp., NY Slip Op 05324 (2d Dep't October 20, 2024)
Defendant's motion for summary judgment with respect to plaintiff's breach of contract cause of action is denied, as plaintiff sufficiently raised issues of fact with respect to damages. In discovery, plaintiff provided interrogatory responses and produced admissible documentary and testimonial evidence regarding the contract price, plaintiff's estimated costs of performance, and defendant's non-payment. In addition plaintiff's director of business development, testified at deposition that the proffered documents were generated in the ordinary course of business, and he gave details regarding the project costs contained in the documents. Since the parties entered into a fixed-price construction contract where defendant allegedly prevented performance, plaintiff adequately proffered evidence raising a factual issue about damages.
Adler Windows, Inc. v. Freidheim, NY Slip Op 05396 (1st Dep't October 31, 2024)
Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner. That section imposes a non-delegable duty on a property owner to maintain and repair the sidewalk abutting its property. Generally, the issue of whether a dangerous or defective condition exists on a property depends on the facts of each case and is a question of fact for the jury. However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub a toe, or trip. In other words, if a defect is so slight that no careful or prudent person would reasonably anticipate any danger from it, and yet an accident occurs that is traceable to the defect, there is no liability. A defendant seeking dismissal of a complaint on the basis that an alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact. There is no minimal dimension test or per se rule that the condition must be of a certain height or depth in order to be actionable. Instead, in determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect along with the time, place, and circumstance of the injury. This analysis may include consideration of the weather and lighting conditions in the area, the plaintiff's familiarity therewith, the extent to which the area may have been crowded, and whether the alleged defect was otherwise obscured or concealed at the time of the accident. Photographs that are acknowledged to fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable.
Brothers v. Nisan Maintenance Corp., NY Slip Op 05323 (2d Dep't October 30, 2024)
A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a non-negligent explanation for the collision to rebut the inference of negligence. Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation for the collision. Thus, in a three-vehicle chain-collision accident, the defendant operator/owner of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle.
Beltre v. Menegos, NY Slip Op 05322 (2d Dep't October 30, 2024)
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. In order to be entitled to summary judgment on the issue of liability, a plaintiff does not have the burden of establishing the absence of his own comparative negligence. However, the issue of a plaintiff's comparative negligence may be decided in the context of a plaintiff's motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of an affirmative defense alleging comparative negligence.
Arnold v. Shepitka, NY Slip Op 05321 (2d Dep't October 30 2024)
Upon the filing of a voluntary bankruptcy petition, all property which a debtor owns, including claims and causes of action, vests in the bankruptcy estate. Thus, when plaintiff filed for bankruptcy, her claims against defendants became property of the bankruptcy estate and only the trustee had standing to commence and prosecute the claims in the instant action.
Since this action was commenced by a party without standing to sue, dismissal is required. This flaw cannot be cured by a simple amendment substituting the trustee in place and stead of plaintiff debtor. The dismissal, however, is without prejudice, and the parties' arguments concerning CPLR 205(a) are premature until such a time as the trustee commences an action.
Messer v. Hughes, NY Slip Op 05309 (1st Dep't October 29, 2024)
While a party is entitled to a reasonable opportunity to conduct discovery in advance of a summary judgment determination, a party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.
Woodham v. New York City Transp. Auth., NY Slip Op 05239 (2d Dep't October 23, 2024)
Factual affidavits do not constitute documentary evidence within the meaning of CPLR 3211(a)(1). Where the affiant offers no basis to find personal knowledge of the facts stated therein, the affidavit is without probative value.
Juman v. Cape Church Assoc., LLC, NY Slip Op 05281 (1st Dep't October 24, 2024)
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 conduct by the landlord giving rise to a duty.
Greco v, St. Bridget's Church at Westbury, Queens Co., NY Slip Op 05203 (2d Dep't October 23, 2024)
Plaintiff's motion to vacate a default judgment dismissing the complaint is denied.
Notwithstanding plaintiff's showing of merit, he failed to demonstrate a reasonable excuse for failing to oppose the City's motion to dismis. While plaintiff's counsel adequately explained the failure to respond to the hard copy of the City's motion, counsel failed to explain why he did not e-file a notice of appearance, thereby ensuring he would have received notice of the motion to dismiss via the court's e-filing system, until November 2021, well after he informed the City of his representation of plaintiff. This occurred after he received plaintiff's file, which he suggested he needed to properly address this case.
Moreover, counsel's failure to respond to the City's motion was part of a larger pattern of neglect. Plaintiff has not explained why his second and third counsel did not fully comply with a September 3, 2020 discovery order until March 2023, when current counsel filed his motion to vacate. Plaintiff also has not explained why, after his current counsel learned of the March 2022 order of dismissal and failed to reach plaintiff by phone, counsel did not notify plaintiff of the order by mail or seek to vacate the default until almost a year after notice of entry of the order.
Bey v. City of New York, NY Slip Op 05274 (1st Dep't October 24, 2024)
On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true, and the plaintiff is to be afforded every favorable inference. However, allegations consisting of bare legal conclusions and factual claims that are inherently incredible are not entitled to a favorable inference. Further, dismissal pursuant to CPLR 3211(a)(7) is warranted when the plaintiff fails to assert facts in support of an element of the claim or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.
Here, the plaintiff failed to assert facts in support of the elements of an unfair competition cause of action. The plaintiff did not allege any facts that could be construed as palming off or misappropriation, either one of which is a required element of an unfair competition cause of action. Dismissed.
Similarly, the plaintiff failed to assert facts to support the elements of the cause of action alleging tortious interference with contract. The cause of action requires allegations of the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third-party's breach of the contract without justification, actual breach of the contract, and damages resulting therefrom. The plaintiff failed to allege the existence of any third-party agreement. Dismissed.
The plaintiff also failed to state a cause of action alleging tortious interference with business relations. In order to prevail on the claim, a plaintiff must prove: (1) that it had a business relationship with a third party; (2) that the defendant knew of that relationship and intentionally interfered with it; (3) that the defendant acted solely out of malice or used improper or illegal means that amounted to a crime or independent tort; and (4) that the defendant's interference caused injury to the relationship with the third party. The plaintiff failed to allege facts to indicate that the defendants acted solely out of malice and/or used improper or illegal means in removing her from stroke rounds. Dismissed.
The plaintiff also failed to state a defamation cause of action. The plaintiff's allegations were insufficient in that they failed to allege the particular words complained of, pursuant to CPLR 3016[a], the time, place, and manner of publication, or the person or persons to whom the statements were allegedly made. Dismissed.
Delanerolle v. St Catherine of Sienna Med. Ctr., NY Slip Op 05201 (2d Dep't October 23, 2024)
