Vacating a default on a motion.

A party seeking to vacate a default for failing to oppose a motion must demonstrate a reasonable excuse and a potentially meritorious opposition to the motion. The determination of what constitutes a reasonable excuse is within the sound discretion of the motion court, and will not be disturbed if there is support in the record. In making its determination, the court should consider factors such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits.

Arroyo v. Starrett City, Inc., NY Slip Op 02050 (2d Dep't March 20, 2019)

Here is the decision.

An unpleaded affirmative defense.

The motion court may consider an affirmative defense that was not pleaded in the answer where the facts leading up to the accident are known to the plaintiff based on deposition testimony and materials exchanged during discovery.

Santana v. Metropolitan Transp. Co., NY Slip Op 02158 (1st Dep't March 19, 2019)

Here is the decision.

Spoliation sanctions.

The imposition of sanctions is not limited to cases where the evidence was destroyed willfully or in bad faith, as the negligent loss of evidence can be just as fatal to the other party's ability to present a defense. Where the striking of a pleading would be too severe, an adverse inference charge at trial would be appropriate.

Alphas v. Smith, NY Slip Op 02030 (1st Dep't March 19, 2019)

Here is the decision.

Affidavits.

An affidavit that directly contradicts the affiant's prior testimony creates a feigned issue of fact and is insufficient to defeat a properly supported motion for summary judgment.

Laniox v. City of New York, NY Slip Op 02026 (1st Dep't March 19, 2019)

Here is the decision.

The continuous representation doctrine.

Under the doctrine, tolling of the limitations period ends once the client is informed or otherwise put on notice of the attorney's withdrawal from representation.

RJR Mech. Inc. v. Revoldt, NY Slip Op 01844 (1st Dep't March 14, 2019)

Here is the decision.

Opposing summary judgment.

A defendant may not use uncertified documents to raise triable issues of fact in opposition to a motion for summary judgment.

Garcia v. McCrea, NY Slip Op 01842 (1st Dep't March 14, 2019)

Here is the decision.

Confessions of judgment.

Pursuant to CPLR 3218[a][1], an affidavit of a confession of judgment must state the sum for which judgment may be entered.  If the judgment is for money due or to become due, 3218[a][2] requires that the affidavit state the facts out of which the debt arose and that the sum confessed is justly due or to become due.

Parker Waichman, LLP v. Getreu, NY Slip Op 01783 (2d Dep't March 13, 2019)

Here is the decision.

Taxis, seatbelts, and liability.

The failure to provide seatbelts in a taxicab is a violation of Vehicle and Traffic Law § 383, and constitutes negligence as a matter of law. Where the injured plaintiff failed to wear an available seatbelt, that failure goes to damages, not liability. However, that is not the case where the vehicle owner did not provide seatbelts in the first place.

Grant v. AAIJ African Mkt. Corp., NY Slip Op 01823 (1st Dep't March 14, 2019)

Here is the decision.

Rule of Professional Conduct 1.5(g)(1) and splitting fees.

A lawyer may not divide a fee for legal services with another lawyer who is not associated with the same firm unless the division is in proportion to the services performed by each, and, by a writing given to the client, each lawyer assumes joint responsibility for the representation.

O'Dwyer v. Law Offs. of Rex E. Zachofsky, PLLC, NY Slip Op 01728 (March 12, 2019)

Here is the decision.

Retainer agreements and legal fees.

An attorney's failure to comply with the letter of engagement rule, codified at 22 NYCRR 1215.1, does not preclude the recovery of legal fees under a theory of account stated.

Carling v. Peters, NY Slip Op 01713 (1st Dep't March 12, 2019)

Here is the decision.

Limitations on liability.

While contractual limitations on liability are enforceable, they do not, as a matter of public policy, extend to conduct that is grossly negligent.

S.A. De Obras y Servicios, COPASA v. Bank of Nova Scotia, NY Slip Op 01706 (March 12, 2019)

Here is the decision.