CPLR 3126.

A plaintiff may be precluded from offering any evidence of damages for willful and contumacious conduct that may be inferred from the repeated failure to respond to discovery demands or comply with court-ordered discovery, coupled with an inadequate explanation. On appeal, the standard is abuse of discretion.

Gafarova v. Yale Realty, LLC, NY Slip Op 05960 (2d Dep't July 31, 2019)

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Contract construction and interpretation.

In the first instance, the question of whether the writing is ambiguous is for the trial court, and the construction and interpretation of an unambiguous contract is an issue of law. If the language is free from ambiguity, its meaning may be determined on the basis of the writing alone, without resort to extrinsic evidence.  The parties' intent must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations.

Atlantic Shores Bldrs. & Devs., Inc. v. Federico, NY Slip Op 05950 (2d Dep't July 31, 2019)

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Summary judgment in a medical malpractice action.

The defendant-doctor establishes prima facie entitlement to dismissal of the claim by showing that either (i) in treating the plaintiff there was no departure from good and accepted medical practice, or (ii) any departure was not the proximate cause of the plaintiff' injuries. Failure to make this showing requires denial of the motion, regardless of the sufficiency of the opposing papers.

Bahnyuk v. Reed, NY Slip Op 05839 (1st Dep't July 30, 2019)

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CPLR 2214(a).

Pursuant to the statute, an order to show cause must state the relief demanded and the grounds therefor. However, the court may grant such relief as is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.

Velez v. City of New York, NY Slip Op 05781 (2d Dep't July 24, 2019)

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General Municipal Law § 50-e.

Prior to commencing an action sounding in tort against a municipality or public corporation, a notice of claim must be served within 90 days after the claim arises. Leave to serve a late notice is denied where the petitioner fails to submit a copy of the proposed notice. or where the proposed notice does not specify the time, place, and manner in which the claim arose, the items of damages or injuries, or the total amount claimed. The petition must include an excuse for failure to timely serve the notice.

Brown v. City of New York, NY Slip Op 05773 (2d Dep't July 24, 2019)

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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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