Discovery law.

The admissibility of evidence has no bearing on whether the requested information is discoverable.

J.L. v. Archdiocese of N.Y., NY Slip Op 01771 (1st Dep't March 25, 2025)

Here is the decision.

Leave to file a late notice of claim.

Leave is granted where the record shows that the defendant had actual knowledge of the essential underlying facts of its employee's involvement in the accident, the police report, and the accident information exchange form. Petitioner sustained his burden of showing that defendants would not be substantially prejudiced in maintaining a defense on the merits. Any alleged prejudice is undermined by defendants'' contemporaneous investigation, including taking photos of the location as it was at the time of the accident. Defendants' conclusory assertion of prejudice resulting from the 11-month delay in serving the notice of claim is insufficient because they do not assert that the bus operator or the supervisor who investigated the accident are unavailable.

Matter of Williams v. New York City Tr. Auth., NY Slip Op 01782 (1st Dep't March 25, 2025)

Here is the decision.

Appellate practice.

After a nonjury trial, the Appellate Division's power to review the evidence is as broad as the trial court's. The Appellate Division may render a judgment it finds warranted by the facts, giving due regard to the fact that the trial court was able to assess witness credibility.

Sklavonitis v. State of New York, NY Slip Op 01662 (2d Dep't March 19, 2025)

Here is the decision.

Foreclosure sales.

A court may exercise its inherent equitable power to ensure that a sale conducted pursuant to a judgment of foreclosure and sale is not made the instrument of injustice. The court may set aside a foreclosure sale where fraud, collusion, mistake, or misconduct casts suspicion on the fairness of the sale.

U.S. Bank, N.A. v. Singh, NY Slip Op 01664 (2d Dep't March 19, 2025)

Here is the decision.

Leave to intervene.

"Upon timely motion, any person shall be permitted to intervene in any action . . . when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment," pursuant to CPLR 1012[a][3].  A timely motion for leave to intervene will be granted when the intervenor has a real and substantial interest in the outcome of the proceedings.

Windward Bora, LLC v. Home Funds Direct, NY Slip Op 01667 (2d Dep't March 19, 2025)

Here is the decision.

Contractual time-bars.

The court will enforce a contractual provision setting the time within which an action must be commenced.

Spectrum Inc. Gen. Contr. v. Capital One Bank USA, N.A., NY Slip Op 01725 (1st Dep't March 20, 2025)

Here is the decision.

Medical malpractice.

The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that the departure was a proximate cause of injury. On a motion for summary judgment dismissing the complaint, the defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. Expert affirmations that do not address the essential factual allegations in the complaint or bill of particulars do not establish prima facie entitlement to judgment as a matter of law.

Delia v. Wieder, NY Slip Op 01604 (2d Dep't March 19, 2025)

Here is the decision.

Premises liability.

An injury resulting from a trivial defect, not constituting a trap or nuisance, is not actionable. In determining whether a defect is trivial, the court must examine the width, depth, elevation, irregularity, and appearance of the defect, along with the time, place, and circumstance of the injury. There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable.

Brown v. Heron Flatbush, LLC, NY Slip Op 01603 (2d Dep't March 19, 2025)

Here is the decision.

Nonconforming goods.

A proven nonconformity of goods delivered does not negate the requirement of notice of rejection within a reasonable time, pursuant to UCC § 2-602[1].

Thread Counsel, Inc. v. State of New York, NY Slip Op 01435 (1st Dep't March 13, 2025)

Here is the decision.

Vacating a default.

Pursuant to CPLR 5015(a)(1), "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . excusable default." A party seeking to vacate an order entered upon a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion. Law office failure may qualify as a reasonable excuse for a party's default if the claim of such failure is supported by a credible and detailed explanation of the default.

Bayron Chay Mo v. Ultra Dimension Place, LLC, NY Slip Op 01338 (2d Dep't March 12, 2025)

Here is the decision.

Agency law.

A corporation is deemed to have ratified its agent's acts if it retains the benefit of those acts for corporate purposes. The corporation cannot retain the product of the agent's fraudulent representations and, at the same time, repudiate the agency and methods which brought it into being. Therefore, the agent's fraud can be imputed to the corporation,

53 Spencer Realty, LLC v Fidelity Natl. Title Ins. Co., NY Slip Op 01336 (2d Dep't March 12, 2025)

Here is the decision.

Contract law.

A simple breach of contract, without more, is insufficient to warrant piercing the corporate veil.

Cedar Capital Group Mgt., Inc. v. Lillie, NY Slip Op 01569 (1st Dep't March 18, 2025)

Here is the decision.

Personal jurisdiction.

After multiple unsuccessful attempts at court-ordered personal service, the Family Court directed the father to serve the mother in accordance with CPLR 308(4) may be accomplished "by affixing the summons to the door of either the . . . dwelling place or usual place of abode within the state of the person to be served and by . . . mailing the summons to such person at his or her last known residence." In moving to dismiss the petition due to lack of personal jurisdiction, the mother effectively acknowledged that she had received a copy of the summons and petition affixed to the door of her home but stated simply, "To date, I have not received any mailing of the summons/petition."

In opposition, the father submitted an affidavit of service from a process server, in which the process server averred that he had mailed the summons to the mother at her residence by enclosing it in a post-paid wrapper marked "'Personal and Confidential'" and delivering it to a branch of the United States Postal Service, pursuant to CPLR 3211[e]. In reply, the mother failed to submit an affidavit elaborating on her bare denial of receipt of the summons and petition by mail at her admitted residence.

The Appellate Division determined that the Family Court erred in directing a hearing to determine the validity of service of process upon the mother and should have found that service of process upon the mother was properly effectuated. The Appellate Division also noted that, in any event, the court had no authority to dismiss the petition for lack of personal jurisdiction, citing Domestic Relations Law § 76[3].

Matter of Rodriguez v. Escobar, NY Slip Op 01224 (2d Dep't March 5, 2025)

Here is the decision.

Damages for personal injuries.

A jury award of damages is given great deference on appeal, but the award may be set aside if it deviates materially from reasonable compensation, as measured by similar cases and considering the nature and extent of the injuries.

Murray v. County of Suffolk, NY Slip Op 01225 (2d Dep't March 5, 2025)

Here is the decision.

Religious disputes.

A religious dispute is justiciable only if it can be resolved based on neutral principles of law without reference to any religious principle.

New Hope Christian Church, Inc. v. Parks, NY Slip Op 01227 (2d Dep't March 5, 2025)

Here is the decision.

Leave to amend.

Granting leave to amend a complaint to add a claim does not preclude dismissal of that claim on a subsequent motion.

Thoro-Graph, Inc. v. New York Racing Assn., Inc., NY Slip Op 01306 (1st Dep't March 6, 2025)

Here is the decision.

Motions to dismiss.

In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Defendants bear the burden of establishing that the complaint fails to state a viable cause of action.

Ramirez-Gomez v. Empire Today, LLC, NY Slip Op 01248 (2d Dep't March 5, 2025)

Here is the decision.

Appellate practice.

On their appeal, the plaintiffs advance arguments that appear to be without merit in law and/or a stalling tactic. Therefore, pursuant to 22 NYCRR 130-1.1[c][1], the appeal may be frivolous. The Appellate Division directs the submission of affirmations or affidavits on the issue of whether, and in what amount, costs or sanctions should or should not be imposed upon the plaintiffs and/or the plaintiffs' counsel.

Rahman v. Desch, NY Slip Op 01247 (2d Dep't March 5, 2025)

Here is the decision.

Admissibility of a hearing transcript.

The court properly denied that branch of the plaintiffs' motion seeking to preclude the defendants from offering into evidence transcripts of the plaintiffs' testimony at hearings held pursuant to General Municipal Law § 50-h. There is no provision within the CPLR, the General Municipal Law, or the Uniform Rules for the Trial Courts that requires that a transcript of a hearing held pursuant General Municipal Law § 50-h bear any particular caption or index number, or the name of an assigned judge.

Rahman v. Desch, NY Slip Op 01247 (2d Dep't March 5, 2025)

Here is the decision.

Amended pleadings.

When an amended complaint has been served, it supersedes the original complaint and becomes the only complaint in the case.

Qualified Impressions, LLC v. Pessa, NY Slip Op 01246 (2d Dep't March 5, 2025) 

Here is the decision.

General releases.

A general release is governed by principles of contract law. A valid release which is clear and unambiguous on its face and which is knowingly and voluntarily entered into will be enforced as a private agreement between parties, and bars an action on any cause of action arising prior to its execution. A general release bar will not only cover any and all claims between the releasor and releasees which had, by that time the release is executed, actually ripened into litigation, but to all such issues which might then have been adjudicated as a result of pre-existing controversies.

Like any contract, a release must be read as a whole in order to determine its purpose and intent, and extrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous. A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion. An ambiguity never arises out of what is not written, but only out of what was written so blindly and imperfectly that its meaning is doubtful.

Smith v. City of New York, NY Slip Op 01198 (1st Dep't March 4, 2025)

Here is the decision.

Appellate practice.

As a general rule, the Appellate Division does not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although it has the inherent jurisdiction to do so. 

Deutsche Natl. Bank Trust Co. v. Light, NY Slip Op 01078 (2d Dep't February 26, 2025)

Here is the decision.

Discovery sanctions.

Pursuant to CPLR 3126, a court may impose sanctions, including the striking of a pleading or preclusion of evidence, where a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed. Before a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. Here, the plaintiff failed to make a clear showing that the defendants willfully or contumaciously disobeyed a discovery order or acted in bad faith. Accordingly, the Supreme Court providently exercised its discretion by denying that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendants' answer.

Borchkhadze v. McMahon, NY Slip Op 01077 (2d Dep't February 26, 2025)

Here is the decision.

Contract law.

Conduct amounting to breach of contract may also constitute breach of fiduciary duty.

Dar v. SAJ Transp. Northeast., LLC, 01165 (1st Dep't February 27, 2025)

Here is the decision.

Easements.

An easement appurtenant occurs when the easement is created in writing, subscribed by the creator, and burdens the servient estate for the benefit of the dominant estate. Once created, the easement runs with the land and can only be extinguished by abandonment, conveyance, condemnation, or adverse possession.

Bikes by Olga, LLC v. People of the State of New York, NY Slip Op 01076 (2d Dep't February 26, 2025)

Here is the decision.

Motion practice.

A court of original jurisdiction may entertain a motion for leave to renew based on an alleged change in or clarification of the law, even after an appellate court has rendered a decision on the prior order.

435 Cent. Park W. Tenant Assn. v. Park Front Apts., LLC, NY Slip Op 01157 (1st Dep't February 27, 2025)

Here is the decision.

Challenging a university's academic decisions.

The motion court found that plaintiff's causes of action, while pled as discrimination and contract claims, essentially seek to challenge defendants' academic decisions and testing procedures, and, therefore, should have been brought in an article 78 proceeding. It is undisputed that plaintiff was granted testing accommodations for her disabilities, and defendants' decision to deny her requests for additional accommodations and opportunities to re-take exams constitutes an academic decision, as granting her request would require relaxing defendants' academic standards and policies. Since plaintiff failed to bring the action within the four-month statute of limitations period, her claims are time-barred. For that reason, the motion court declined to convert plaintiff's plenary action into an article 78 proceeding.

Rutkoski v. New York Univ., NY Slip Op 01181 (1st Dep't February 27, 2025)

Here is the decision.

Appellate practice.

No appeal lies from an order denying leave to reargue.

Bayview Loan Servicing, LLC v. Kelly, NY Slip Op 01075 (2d Dep't February 26, 2025)

Here is the decision.

Leave to amend.

The Appellate Division held that insofar as Non-Linear Trading Co. v Braddis Assoc., 243 AD2d 107, held that a motion for leave to amend a pleading must be supported by an affidavit of merit, it should not be followed.

State Farm Mut. Auto. Ins. Co. v. Clarke, NY Slip Op 01184 (1st Dep't February 27, 2025)

Here is the decision.

The death of a party.

Generally, the death of a party divests a court of jurisdiction to act and automatically stays proceedings pending the substitution of a personal representative for the decedent. In most instances, a personal representative appointed by the Surrogate's Court should be substituted in the action to represent the decedent's estate. However, where a property owner dies intestate, title to real property is automatically vested in the decedent's distributees.

2911 Mgt., LLC v. Davis, NY Slip Op 01074 (2d Dep't February 26, 2025)

Here is the decision.

Premises liability.

Plaintiff made a prima facie showing that defendant violated its duty under Administrative Code of the City of New York § 7-210 to maintain the sidewalk abutting its property in a reasonably safe condition by failing to repair the raised sidewalk flag on which plaintiff tripped. Plaintiff established that defendant had actual knowledge of the defective condition by submitting the deposition testimony of defendant's superintendent, who testified that he first saw the height differential between the sidewalk flags about two years before plaintiff fell.

Plaintiff established the location of the raised sidewalk flag by drawing a circle on the photograph marked at his deposition and testifying that the circle encompassed the exact location where he fell. Plaintiff also established that the height of the raised sidewalk constituted a tripping hazard by submitting his investigator's affidavit that he went to the accident location about 12 days after plaintiff fell and took photographs that fairly and accurately show the sidewalk's condition. Those photographs show that there was a vertical grade differential between the adjacent sidewalk flags of at least one inch, which constitutes a tripping hazard under Administrative Code § 19-152(a)(4) and the Rules of City of New York Department of Transportation (34 RCNY) § 2-09(f)(5)(iv). In opposition, defendant submitted no evidence that raised a triable issue of fact as to where plaintiff fell or regarding the height differential between the sidewalk flags.

Plaintiff's motion for summary judgment on the issue of liability is granted.

Volquez v. Bronx 2120 Crotona Ave., L.P., NY Slip Op 01072 (1st Dep't February 25, 2025)

Here is the decision.