Proper service.

A process server's affidavit is prima facie evidence of proper service.

Margarella v. Ullian, NY Slip Op 05926 (2d Dep't August 29, 2018)

Here is the decision.

Strict liability for dog bites.

To recover on a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities, and that the owner knew or should have known of the dog's propensities. Vicious propensities include the propensity to do any act that might endanger the safety of persons or the property of others. Evidence tending to prove that a dog has vicious propensities includes a prior attack; the dog's tendency to growl, snap, or bare its teeth; the manner in which the dog was restrained; and a proclivity to act in a way that puts others at risk.

Lipinsky v. Yarusso, NY Slip Op 05925 (2d Dep't August 29, 2018)

Here is the decision.

General Obligations Law § 17-101.

The statute revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt. To constitute a valid acknowledgment, the writing must be signed; it must must recognize an existing debt; and it must contain nothing inconsistent with the debtor's intention to pay the debt.

Karpa Realty Group, LLC v. Deutsche Bank Natl. Trust Co., NY Slip Op 05921 (2d Dep't August 29, 2018)

Here is the decision.

Claims of negligent hiring or supervision.

A necessary element of the cause of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.  There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.

KM v. Fencers Club, Inc., NY Slip Op 05923 (2d Dep't August 29, 2018)

Here is the decision.

Pleading a joint venture agreement.

In order to properly plead the agreement, a plaintiff must allege acts manifesting the parties' intent to be associated as joint venturers; mutual contribution to the joint undertaking through a combination of property, financial resources, effort, skill or knowledge; a measure of joint proprietorship and control over the enterprise; and a provision for the sharing of profits and losses. Under both common law and statutory law, a contract of  joint venture or partnership must include a mutual promise to share in the profits of the business and submit to the burden of making good the losses.

Slabakis v. Schik, NY Slip Op 05962 (1st Dep't August 30, 2018)

Here is the decision.

Spoliation.

When a party negligently loses or intentionally destroys key evidence, depriving the other party of a claim or defense, the court may direct the striking of its pleading.  In the absence of willful or contumacious conduct, the court must consider the prejudice resulting from the spoliation. If the other party is still able to establish or defend the claim, a less severe sanction is appropriate.

Francis v. Mount Vernon Bd. of Educ., NY Slip Op 05916 (2d Dep't August 29, 2018)

Here is the decision.

Court holiday.

A school's liability.

While schools have a duty to adequately supervise students, third-party acts causing injury to a fellow student will not give rise to the school's liability in negligence absent actual or constructive notice of prior similar conduct.

Francis v. Mount Vernon Bd. of Educ., NY Slip Op 05916 (2d Dep't August 29, 2018)

Here is the decision.

CPLR 3216.

Pursuant to the statute, a court may, on its own initiative, dismiss an action for failure to prosecute. CPLR 3216(a) requires service of the defendant's written demand stating that the plaintiff's failure to proceed within ninety days will result in a motion to dismiss. A conditional order of dismissal may have the same effect as a valid 90-day notice if, among other things, the order satisfies the statutory notice requirement.

Deutsche Bank Natl. Trust Co. v. Bastelli, NY Slip Op 05822 (2d Dep't August 22, 2018)

Here is the decision.

The City's duty of care over streets and sidewalks.

Administrative Code of the City of New York § 7-201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location.  Accordingly, prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City.  The only recognized exceptions to the prior written notice requirement involve situations in which either the municipality created the defect through an affirmative act of negligence, or a special use confers a special benefit upon the municipality.

Allen v. City of New York, NY Slip Op 05811 (2d Dep't August 22, 2018)

Here is the decision.

Probable cause as an affirmative defense.

Probable cause constitutes a complete defense to causes of action alleging false arrest, false imprisonment, and malicious prosecution. The defense extends to § 1983 claims that are the federal-law equivalents of state common-law causes of action for false arrest and malicious prosecution.

Ball v. Miller, NY Slip Op 05813 (2d Dep't August 22, 2018)

Here is the decision.