A private cause of action may be implied from a penal statute only where the plaintiff is one of the class for whose particular benefit the statute was enacted. Here, the claim based on an alleged violation of the reckless endangerment statute is dismissed because the statute was enacted for the benefit of the general public, not for the particular benefit of a class to which the plaintiff belongs.
Alfonso v. Trucar Leasing Corp., NY Slip Op 01154 (1st Dep't March 5, 2024)
Under New York's choice of law rules, malicious prosecution claims are governed by the law of the state where the underlying proceeding took place. Here, the arbitration that gave rise to plaintiffs' malicious prosecution claim was held in California. Therefore, the court properly applied California law, which bars plaintiffs' malicious prosecution claim because the claim arises from a contractually agreed upon arbitration.
Zeetogroup, LLC v. Baker Hostetler, LLP, Slip Op 00992 (1st Dep't February 27, 2024)
An action may be dismissed for lack of personal jurisdiction, pursuant to CPLR 3211[a][8]. The affirmative defense of lack of personal jurisdiction is waived if it is not raised in the answer or a pre-answer motion to dismiss, pursuant to CPLR 3211[e]. However, the defense is not waived if the defendant corrects the omission before the expiration of the time to amend the answer without leave of court.
Manfredo v. 100-106 LLC, NY Slip Op 01115 (1st Dep't February 29, 2024)
A party seeking to vacate a default must establish a reasonable excuse for the default, as well as a potentially meritorious claim or defense, pursuant to CPLR 5015[a][1].
Matter of Dublin v Morris, NY Slip Op 01009 (2d Dep't February 28, 2024)
CPLR 327(a) codifies the common-law doctrine of forum non conveniens as follows:
"When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action."
A plaintiff's choice of forum should rarely be disturbed, even when plaintiff is not a New York resident. So, a defendant seeking dismissal on forum non conveniens grounds has a heavy burden of establishing that New York is an inconvenient forum and that a substantial nexus between New York and the action is lacking.
Bangladesh Bank v. Rizal Commercial Banking Corp., NY Slip Op 01112 (1st Dep't February 29, 2024)
In order to establish a cause of action sounding in negligence, a plaintiff must establish the existence of a duty on defendant's part to plaintiff, breach of the duty, and damages. On a claim of negligent supervision of a child, the plaintiff must establish that the defendant had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated. In order to establish a cause of action based on negligent hiring, negligent retention, or negligent supervision of an employee, it must be shown that the employer knew, or should have known, of the employee's propensity for the conduct which caused the injury. On a claim of negligent failure to warn, the plaintiff must also establish that the employer was aware of the offending employee's propensity to engage in the complained-of conduct.
Brophy v. Big Bros. Big Sisters of Am., Inc., NY Slip Op 00993 (2d Dep't February 28, 2024)
No appeal lies from an order denying reargument.
Christiana Trust v. Victor, NY Slip 00994 (2d Dep't February 24, 2024)
A defendant's appearance in an action is deemed to be the equivalent of personal service of a summons, and, in the absence of an objection to jurisdiction by way of a motion or answer, the appearance confers personal jurisdiction over that defendant, pursuant to CPLR 320[b]. In addition, a defendant may appear informally by actively litigating the action before the court. Here, the defendant waived the defense of lack of personal jurisdiction by filing a notice of appearance and opposing the plaintiff's motions to confirm the referee's report without simultaneously asserting an affirmative objection to jurisdiction.
U.S. Bank N.A. v. Jong Shin, NY Slip Op 01029 (2d Dep't February 28, 2024)
Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff's factual allegations. Here, the cause of action alleging fraud was barred by the specific terms of the contract of sale of a commercial property. The contract of sale utterly refuted the plaintiff's factual allegations and conclusively established a defense to the complaint as a matter of law.
Arco Acquisitions, LLC v. Tiffany Plaza, LLC, NY Slip Op 00888 (2d Dep't February 21, 2024)
A party repudiates a contract where, before the time of performance, that party puts it out of his power to keep the agreement. Besides giving the non-repudiating party an immediate right to sue for damages for total breach, the repudiation discharges the non-repudiating party's obligations to render performance in the future.
EPAC Tech., Inc. v. John Wiley & Sons, Inc., NY Slip Op 00933 (1st Dep't February 22, 2024)
An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Where the mortgage debt is accelerated, the entire balance of the debt accrues, and the statute of limitations begins to run on the entire debt.
Wilmington Trust Co. v. Yonkus, NY Slip Op 00925 (2d Dep't February 21, 2024)