Civil contempt.

In order to prevail on a motion to hold another party in civil contempt, the movant must prove, by clear and convincing evidence: (1) that a lawful court order was in effect, clearly expressing an unequivocal mandate; (2) the appearance, with reasonable certainty, that the order was disobeyed; (3) that the party to be held in contempt had knowledge of the court's order; and (4) prejudice to the right of a party to the litigation. The burden then shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order.

Board of Mgrs. of Brightwater Towers Condominium v. M. Marin Restoration, Inc., NY Slip Op 03491 (2d Dep't June 1, 2022)

Here is the decision.

CPLR 7804[g].

Where an Article 78 petition raises an issue of substantial evidence, the Supreme Court should transfer the petition to the Appellate Division for disposition.

Matter of 475 Kent Owner, LLC v. New York City Loft Bd., NY Slip Op 03568 (1st Dep't June 2, 2022)

Here is the decision.

A hostile environment claim.

The cause of action requires allegations of repeated conduct, not discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire.

Blackman v. Metropolitan Tr. Auth., NY Slip Op 03490 (2d Dep't June 1, 2022)

Here is the decision.

Appellate practice.

An argument that is not raised before the motion court may be considered on appeal if it appears on the face of the record, involves no new facts, and could not have been avoided if it had been timely raised.

Peralta v. City of New York, NY Slip Op 03579 (1st Dep't June 2, 2022)

Here is the decision.

Defaults.

By failing to answer, the defaulting defendants are deemed to have admitted the factual allegations in the complaint.

State Farm Fire & Cas. Co. v. Axial Chiropractic, P.C., NY Slip Op 03487 (1st Dep't May 31, 2022)

Here is the decision.

Failure-to-warn liability.

Liability is intensely fact-specific, with issues including, but not limited to, the feasibility and difficulty of issuing warnings in the circumstances; the obviousness of the risk from actual use of the product; the user's knowledge of the product; and proximate cause. Recovery may properly be denied to a product user who was fully aware of the hazard through general knowledge, observation, or common sense. For that reason, courts could decide, as a matter of law, that a manufacturer's warning would have been superfluous given the injured party's actual knowledge of the specific hazard that caused the injury. However, even if a product user has some degree of knowledge of the potential hazards in the use of a product, summary judgment will not lie where reasonable minds might disagree as to the extent of that knowledge.

Vasquez v. Ridge Tool Pattern Co., NY Slip Op 03488 (1st Dep't May 31, 2022)

Here is the decision.

CPLR 3126.

The motion court considered plaintiff's objections to discovery demands and found them inadequate, given that there are two inconsistent documents in the record. Further, plaintiff had not provided an affidavit concerning its search for documents, and had not produced a witness for deposition. After issuing a conditional order of dismissal, the motion court does not have to inquire into whether plaintiff's noncompliance with discovery was willful. 

Wilmington Sav. Fund Socy, FSB v. Donaldson, NY Slip Op 03465 (1st Dep't May 26, 2022)

Here is the decision.

CPLR 213[4].

An action to foreclose a mortgage is subject to a six-year statute of limitations. The limitations period begins to run from the due date of each unpaid installment, from the date the mortgagee is entitled to demand full payment, or from the date the mortgage debt has been accelerated.

Bank of Am., N.A. v. Scher, NY Slip Op 03365 (2d Dep't May 25, 2022)

Here is the decision.