CPLR 2101 (b).

The statute provides that "[w]here an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate." Here, the Appellate Division found that evidence in the record, including the deposition testimony of an interpreter who was hired by the defendants to assist in the preparation of the affidavits of merit, established that those affidavits were not prepared in accordance with the statutory requirements or the decisional law cited in the Supreme Court's order. The Appellate Division affirmed the Supreme Court's determination granting those branches of the plaintiff's motion which were to dismiss the amended counterclaim and to cancel the notice of pendency.

Testa v. Testa, NY Slip Op 01947 (2d Dep't March 18, 2020)

Here is the decision.

Excusing a default.

The motion court providently exercised its discretion in denying the motion to dismiss the action pursuant to CPLR 3215(c). Plaintiff provided a reasonable excuse for its delay in seeking a default judgment, namely, an inadvertent error by plaintiff's counsel in moving for a default judgment against the "non-appearing" defendants only. The record otherwise demonstrates that plaintiff did not abandon the action.

Wilmington Sav. Fund Socy. v. Hyo Choong Sung, NY Slip Op 01956 (1st Dep't March 19, 2020)

Here is the decision.

Spoliation.

Plaintiff's motion for sanctions was granted to the extent of imposing an adverse inference charge. Defendants had an obligation to preserve the pre-accident audio recordings because the Police Department's nternal report and plaintiff's notice of claim, which attached the public police accident report, put defendants on notice that they would likely assert an emergency operation defense. Therefore, pre-accident audio communication between the dispatcher and the police vehicle or officers involved in the accident should have been preserved in case it was needed for future litigation.

Sanchez v. City of New York, NY Slip Op 01970 (1st Dep't March 19, 2020)

Here is the decision.

Contracts and equity.

 A court of equity may rescind a contract for unilateral mistake if the failure to do so would enrich one party at the other's expense, and the parties can be returned to the status quo without prejudice.

Quattro Parent LLC v. Rakib, NY Slip Op 01966 (1st Dep't March 19, 2020)

Here is the decision.

CPLR 3116(a).

The trial court erred in permitting defendants to use the transcripts of plaintiff's and his nonparty wife's depositions at trial, since the transcripts had never been served upon plaintiff and his wife.

Greenman v. 2451 Broadway Mkt., Inc., NY Slip Op 01962 (1st Dep't March 19, 2020)

Here is the decision.

Design defect and failure to warn claims.

The denial of summary judgment on the design defect claim was affirmed, as plaintiff's expert's averments that the ladder at issue was defective and unreasonably dangerous because its design included feet that were prone to wear and tear and to slip out, raised issues of fact as to whether the ladder was defectively designed and the proximate cause of plaintiff's injuries.  The defendant's mere compliance with minimum industry standards is not a shield to liability, but, at most, is some evidence to be considered.

The denial of summary judgment on the failure to warn claim was affirmed, since plaintiff's expert raised issues of fact as to whether the ladder's warnings failed to identify the foot slip-out danger or instruct the user of proper methods to mitigate the danger.

Alicea v. Gorilla Ladder Co., NY Slip Op 01960 (1st Dep't March 19, 2020)

Here is the decision.

CPLR 3025[b].

The Supreme Court did not abuse its discretion in denying leave to amend the first amended complaint, particularly where plaintiff acknowledges that it could have sought leave sooner, but strategically chose not to. The plaintiff's additional allegations supplement claims already deemed sufficiently pleaded, and those further allegations would prejudice the defendant at this late stage, when discovery has closed, trial is scheduled to commence, and the defendant's summary judgment motion is pending.

Atlas MF Mezzanine Borrower, LLC v. Macquarie Tex. Loan Holder LLC, NY Slip Op 01709 (1st Dep't March 12, 2020)

Here is the decision.

Res judicata.

Res judicata does not bar plaintiffs' current action seeking compensation for injuries and damages resulting from a mold condition in their apartment in a building that is owned and managed by defendants. The record shows that a stipulation discontinuing a prior lawsuit against one of defendants' board members for his alleged tortious acts was not intended to encompass plaintiffs' current claims.

Gaudio v. Grabler Bldg. Condominium, NY Slip Op 01700 (1st Dep't March 12, 2020)

Here is the decision.

Appellate practice.

In reviewing a determination made after a nonjury trial, the Appellate Division has power as broad as the trial court's, and it may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial judge had the advantage of seeing the witnesses.

Bar v. Mandler, NY Slip Op 01592 (2d Dep't March 11, 2020)

Here is the decision.

CPLR 3101.

While 3101(a) provides for full disclosure of "all matter material and necessary in the prosecution or defense of an action," the principle is limited by 3101(b) and (c), which make privileged matter and attorney work product absolutely immune from discovery.  In addition, pursuant to 3101(d)(2), material that is prepared in anticipation of litigation is subject to a conditional privilege and is subject to disclosure only on a party's showing a substantial need of the material and the inability to get the substantial equivalent of the material by any other means without undue hardship.

1415, LLC v. New York Mar. & Gen. Ins. Co., NY Slip Op 01589 (2d Dep't March 11, 2020)

Here is the decision.

An action marked "Disposed."

The motion court properly ordered the action to be marked "Disposed" since all four of the plaintiff's causes of action had been resolved at the time defendant made its motion to dismiss.  The plaintiff's argument that the second cause of action had not been withdrawn at the time of the defendant's motion is unavailing, since, in an earlier order, the motion court explicitly dismissed without prejudice that claim. Although that order was decided by a different justice, CPLR 2221(a) permits the reassignment of such motions.

Fiondella v. 345 W. 70th Tenants Corp., NY Slip Op 01699 (1st Dep't March 12, 2020)

Here is the decision.