Arbitration.

Undoing an award on the ground that the arbitrator exceeded his power requires a finding that the award violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power, pursuant to CPLR 7511[b].

Pincus v. Motulsky, NY Slip Op 02425 (1st Dep't April 24, 2025)

Here is the decision.

Leave to renew.

The Supreme Court properly denied the defendant's cross-motion for leave to renew her opposition to those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against her and for an order of reference, since the defendant failed to demonstrate that there had been a change in the law that would have altered the prior determination, pursuant to CPLR 2221[e].

Bank of Am. N.A. v. Bente, NY Slip Op 02304 (2d Dep't April 23, 2025)

Here is the decision.

Abuse of process.

The mere commencement of an action is not an abuse of process.

Sharp v. Bar Fluid, LLC, NY Slip Op 02429 (1st Dep't April 24, 2025)

Here is the decision.

Discovery.

After the note of issue is filed, further discovery will be permitted if the defendant demonstrates unusual or unanticipated circumstances subsequent to the filing, pursuant to 22 NYCRR 202.21[d].

Armor v. 501 EMR, LLC, NY Slip Op 02302 (2d Dep't April 23, 2025)

Here is the decision.

Contract law.

A contract is to be construed in accordance with the parties' intent, which is discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.

Albert  v. Afanador, NY Slip Op 02301 (2d Dep't April 23, 2025)

Here is the decision.

Moving for default judgment.

Plaintiff was not entitled to a default judgment, as it failed to take any action for entry of the judgment within one year after default, as required by CPLR 3215(c).

371-381 PAS Assoc., LLC v. Moss & Moss LLP, NY Slip Op 02295 (1st Dep't April 22, 2025)

Here is the decision.

Vacating a default judgment.

Defendant's affidavit denying notice of the defect that allegedly caused plaintiff's injury shows a meritorious defense as to the motion to vacate the default judgment, given the preference for determining actions on the merits.

Corley v. 337 W. 138 St. Holdings, LLC, NY Slip Op 02298 (1st Dep't April 22, 2025)

Here is the decision.

Service of process.

The affidavit of plaintiff's process server demonstrates, prima facie, that service was properly made on defendant, pursuant to CPLR 308(2), by leaving a copy of the summons and complaint with a person of suitable age and discretion at defendant's residence and then mailing a copy to defendant at the same address. Nelson's mere denial of receipt of service is insufficient to rebut the presumption of proper service created by the properly executed affidavit of service.

Thompson v. Nelson, NY Slip Op 02284 (1st Dep't April 17, 2025)

Here is the decision.

Traverse hearings.

Plaintiff failed to demonstrate, by a preponderance of the evidence, proper service of the summons and complaint on defendant. At the traverse hearing, plaintiff's process server submitted the affidavit of service and testified that he served defendant by leaving the summons and complaint with defendant's relative at defendant's apartment. Defendant testified that he did not receive process at his residence, as he was at work on the day of the purported service and there was noone in his apartment to receive process at that time. In any event, he would not have allowed the process server into the building through the intercom system.

The court properly identified several reasons to undermine the process server's credibility and to accept defendant's testimony. It was shown that the process server was sanctioned on numerous occasions, and that he admitted to giving false testimony under oath at a prior traverse hearing. The court also properly found that the process server did not prepare affidavits of service with the necessary care and specificity, and that the recipient's physical characteristics, as reflected in the affidavit of service, did not meet defendant's physical description. Based on the foregoing, the court properly credited defendant's testimony and there is no basis to disturb the court's credibility determinations at the traverse hearing, which are entitled to deference.

Bertotti v. Lief, NY Slip Op 02271 (1st Dep't April 17, 2025)

Here is the decision.

Personal jurisdiction.

Lack of personal jurisdiction is an affirmative defense that is waived by appearing in an action, either formally or informally, without raising the defense in an answer or pre-answer motion to dismiss. A defendant's participation in a lawsuit on the merits indicates an intention to submit to the court's jurisdiction. 

Matter of Weiss v. County of Suffolk, NY Slip Op 02210 (2d Dep't April 16, 2025)

Here is the decision.

"He is not here."

Vigil.

Stabat Mater Dolorosa.

"Quid est veritas?"

Contract law.

A party in breach of its own contractual obligations is not entitled to specific performance on the agreement. 

Jawara v. Araka, NY Slip Op 02130 (1ast Dep't April 10, 2025)

Here is the decision.

Summary judgment.

Since a motion for summary judgment must be addressed to specific causes of action or defenses, the court may search the record and award summary judgment for a nonmoving party only as to a cause of action or issue that is the subject of the motion before the court, pursuant to CPLR 3212(b). Apart from considerations of simple fairness, allowing a summary judgment motion by any party to bring up for review every claim and defense asserted by every other party would be tantamount to shifting the well-accepted burden of proof on summary judgment motions.

Gordillo-Jiminez v. Ravagh Persian Grill, Inc., NY Slip Op 02059 (2d Dep't April 9, 2025)

Here is the decision.

Attorneys' fees.

Discharge for cause is necessary to warrant the forfeiture of an attorney's fee. 

Thuku v. 324 E. 93, LLC, NY Slip Op 02138 (1st Dep't April 10, 2025)

Here is the decision.

Arbitration agreements.

The enforceability of arbitration agreements is governed by the rules applicable to contracts. Although the plaintiff did not sign the agreement in her individual capacity, she is bound by the arbitration clause under the direct benefits theory of estoppel, as the allegations in the complaint show that she knowingly exploited the benefits of the agreement and received benefits flowing directly from that agreement. The defendants did not waive the defense that the parties' dispute was subject to arbitration. The defendants' conduct in appearing in and defending this state court action was not inconsistent with the affirmative defense asserted in their answer that the plaintiff's claims were subject to arbitration.

Belchikov v. XTP Implementation Servs., Inc., NY Slip Op 02054 (2d Dep't April 9, 2025)

Here is the decision.

Leave to Renew

A motion for leave to renew based on an alleged change in the law must be made before entry of a final judgment or before expiration of the time to appeal.

U.S. Bank, N.A. v. Gallant, NY Slip Op 02141 (1st Dep't April 10, 2025)

Here is the decision.

Default judgments.

On a motion pursuant to CPLR 3215 for leave to enter a default judgment, a plaintiff is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's default in answering or appearing. Then, the defendant must show either that there was no default or that there was a reasonable excuse for the delay and a potentially meritorious defense. The determination as to whether an excuse is reasonable is committed to the sound discretion of the motion court. Ongoing settlement negotiations may constitute a reasonable excuse for a default.

Arnav  Indus. Inc. Profit Sharing Plan & Trust v. 3449-3461 Hamilton Ft, LLC, NY Slip Op 02052 (2d Dep't April 9, 2025)

Here is the decision.

Hearsay: Party Admissions.

As an exception to the hearsay rule, a party admission is admissible against that party as evidence of the matter asserted, regardless of whether the statement was against the party's interest when the statement was made.

Vivar v. Citigroup Tech., Inc., NY Slip Op 02051 (1st Dep't April 8, 2025)

Here is the decision.

Sua sponte dismissal.

The court's power to dismiss a complaint sua sponte is to be exercised sparingly and only in extraordinary circumstances.

Wood v. Heni, NY Slip Op 01972 (2d Dep't April 2, 2025)

Here is the decision.

Premises liability.

Although landlords and permittees have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third-parties, they are not the insurers of a visitor's safety. In cases arising out of injuries sustained on another's property, the scope of the possessor's duty is defined by past experience and the likelihood of third-person conduct which is likely to endanger the visitor's safety. A public establishment's owner has no duty to protect patrons against a harm that is unforeseeable and unexpected.

L.D. v. Brooklyn Kings Plaza, LLC, NY Slip Op 01906 (2d Dep't April 2, 2025)

Here is the decision.

Medical Malpractice: Experts' Affidavits.

The affidavit of plaintiff's out-of-state expert may be considered notwithstanding the lack of a certificate of conformity as required by CPLR 2309. The lack of the certificate is a mere irregularity, not a fatal defect.

Smalls v. Finegold, NY Slip Op 02024 (1st Dep't April 3, 2025)

Here is the decision.

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.