CPLR 3013 and 3126.

The plaintiff's request for the disclosure of the defendant's cell phone records is not a mere fishing expedition. The motion papers adequately demonstrate that the request for disclosure may result in relevant evidence, is reasonably calculated to lead to the discovery of information bearing on the plaintiff's claim, and is sufficiently related to the issues to make it reasonable to get them in preparation for trial reasonable.  The defendant's motion for a protective order against production is denied, and the plaintiff's motion to compel production is granted.

Mendives v. Curcio, NY Slip Op 05771 (2d Dep't July 24, 2019)

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A Labor Law § 240(1) cause of action.

The plaintiff's comparative negligence is not a defense to the claim. Recovery is unavailable only where the plaintiff's own conduct is the sole proximate cause of the accident.

Cruz v. St. Gerard Magella Church, NY Slip Op 05763 (2d Dep't July 24, 2019)

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CPLR 308.

The affidavit of a process server constitutes prima facie evidence of proper service, and bare and unsubstantiated denials are insufficient to rebut the presumption of service.

McCraley v. Shvartsman, NY Slip Op 05770 (2d Dep't July 24, 2019)

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Spoliation.

At common law, a party which loses or destroys evidence may be sanctioned under CPLR 3126.  The nature and severity of the sanction depends on factors such as the spoliator's knowledge and intent, proof of an explanation for the loss of evidence, and prejudice to the other party. The party seeking sanctions must demonstrate an obligation to preserve the evidence, a culpable state of mind, and the relevance of the evidence. A culpable state of mind includes ordinary negligence. Where the evidence was intentionally destroyed, its relevance is presumed. Where the evidence was negligently destroyed, its relevance must be established.

Delmur, Inc. v. School Constr. Auth., NY Slip Op 05764 (2d Dep't July 24, 2019)

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Dog bites.

In order to recover on a theory of strict liability in tort, the plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of those propensities.  Evidence of 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 its having been used as a guard dog.

I.A. v. Mejia, NY Slip Op 05757 (2d Dep't July 24, 2019)

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Civil conspiracy.

Civil conspiracy is not an independent tort in New York. However, the allegations of conspiracy are deemed part of a cause of action to which they are relevant, such as a claim for fraud, where liability may be premised on knowing participation in a scheme to defraud, even if that participation does not by itself suffice to constitute the fraud. The allegations of  conspiracy enable a plaintiff to connect a defendant with the acts of co-conspirators where otherwise the defendant could not be implicated.

Errant Gene Thereapetics, LLC v. Sloan-Kettering Inst. for Cancer Research, NY Slip Op 05654 (1st Dep't July 23, 2019)

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Trips and falls.

Proof that a dangerous condition is open and obvious does not preclude a finding of liability, but is relevant to the issue of the plaintiff's comparative negligence.  For summary judgment, a defendant must establish that the condition was both open and obvious and, as a matter of law, was not inherently dangerous.

Karpel v. National Grid Generation, LLC, NY Slip Op 05651 (2d Dep't July 17, 2019)

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A claim for lack of informed consent.

To establish the cause of action, a plaintiff must prove (1) that the treatment provider unreasonably failed to disclose alternatives and foreseeable risks; (2) that a reasonably prudent patient, if fully informed, would not have undergone the treatment; and (3) that the lack of informed consent is a proximate cause of the injury.

Gilmore v. Mihail, NY Slip Op 05647 (2d Dep't July 17, 2019)

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An emergency doctrine jury instruction.

If, under some reasonable view of the evidence, an actor was confronted by a sudden and unforeseen occurrence not of the actor's own making, then the reasonableness of the conduct in the face of the emergency is for the jury, which should be appropriately instructed.

Figgiani v. Crociata, NY Slip Op 05645 (2d Dep't July 17, 2019)

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Fraud and contracts.

The essential elements of a cause of action for fraud are representation of a material existing fact, falsity, scienter, deception, and injury. Mere unfulfilled statements as to what will be done in the future are not actionable as fraud, and the injured party's remedy is to sue for breach of contract. However, where it is alleged that the defendant made misrepresentations of present facts that were collateral to the contract and served as an inducement to enter into the contract, a cause of action alleging fraudulent inducement is not duplicative of a breach of contract claim.

Did-it.com, LLC v. Halo Group, Inc., NY Slip Op 05644 (2d Dep't July 17, 2019)

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Suing the Port Authority.

A notice of claim must be served on the agency 60 days prior to commencing the action.  The notice must be a sworn writing setting forth the nature of the claim and the resulting damages or injuries.

Conn v. Tutor Perini Corp., NY Slip Op 05643 (2d Dep't July 17, 2019)

Here is the decision.