Proof of service.

Failure to file proof of service is a procedural irregularity, not a jurisdictional defect, and it may be cured by motion or sua sponte by the court. The court may grant this relief only upon such terms as may be just, and only where there is no prejudice to a substantial right of a party. The court may not make such relief retroactive, to the prejudice of the defendant, by putting the defendant in default as of a date prior to the order. A court may not give effect to a default judgment that, prior to the curing of the irregularity, was a nullity requiring vacatur.

Cherkassky v. Goykman, NY Slip Op 01904 (2d Dep't April 2, 2025)

Here is the decision.

Amending a pleading.

The motion court denied defendant's request to amend its answer, made for the first time as a footnote in its motion reply papers. A court may grant a request to amend a pleading without a formal motion where the amendment is not futile and will not result in prejudice to any party. The court found prejudice because the amendment would be made at the end of discovery.

Bloom v. Helmsley Spear, LLC, NY Slip Op 01999 (1st Dep't April 3, 2025)

Here is the decision.

Mandamus.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there is a clear legal right to the relief sought.

Matter of Lubrano v. Clarke, NY Slip Op 01809 (2d Dep't March 26, 2025)

Here is the decision.

Spoliation.

The court exercised its discretion and declined to strike the City's answer and to direct an adverse inference charge since the missing video was neither the sole source of information about the incident in which plaintiff was injured nor the sole means by which she can establish her case. Moreover, plaintiff did not show that the missing video was intentionally destroyed or that records beneficial to the City's defense were selectively preserved. Plaintiff's testimony and the conflicting accounts of the incident in the reports prepared by Department of Corrections employees are sufficient to enable the jury to properly evaluate credibility. Nevertheless, permitting the City's witnesses to testify to the contents of the missing tape would provide it with a tactical advantage from the spoliation. Accordingly, defendant is precluded from presenting evidence concerning the contents of the missing tape.

Tittel v. City of New York, NY Slip Op 09102 (1st Dep't April 1, 2025)

Here is the decision.

Appellate practice.

Supreme Court properly denied defendant's motion to vacate the order granting a default judgment. Defendant appealed the order granting the motion for a default judgment, but then abandoned that appeal. Therefore, the order was deemed affirmed, and Supreme Court was bound by the doctrine of the law of the case. Furthermore, issues that could have been raised on the abandoned appeal may not be reviewed on this appeal.

D. Penguin Bros. Ltd. v. City Natl. Bank, NY Slip Op 01863 (1st Dep't March 27, 2025)

Here is the decision.

Employment Law.

A cause of action for negligent hiring, retention, or supervision requires a showing that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and that there is a connection between the negligence and the injury. The employer's negligence lies in its having placed the employee in a position to cause foreseeable harm which most probably would not have occurred had the employer taken reasonable care in making decisions regarding the employee's hiring, retention, or supervision.

Schlesinger v. Sisters of the Order of St. Dominic, NY Slip Op 01831 (2d Dep't March 26, 2025)

Here is the decision.