A negligence action.

A plaintiff moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff, and that the defendant's negligence was a proximate cause of the alleged injuries. While the plaintiff need not establish the absence of comparative fault, the issue of a plaintiff's comparative negligence may be decided on a summary judgment motion where, as here, the plaintiff moves for summary judgment dismissing the defendant's affirmative defense of comparative negligence.

Hai Ying Xiao v. Martinez, NY Slip Op 04295 (2d Dep't July 29, 2020

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Notices of appearance.

Where the plaintiff's process was a summons with notice, as authorized by CPLR 305(b), the defendant may appear in the action, and avoid a default, by timely serving a notice of appearance.

Deutsche Bank Natl. Trust Co. v. Hall, NY Slip Op 04292 (2d Dep't July 29, 2020)

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CPLR 3211(a)(7).

On a motion to dismiss, the court merely examines the adequacy of the pleading, unlike a summary judgment motion, where the court searches the record and assesses the sufficiency of the parties' evidence. In considering the motion to dismiss, the court must accept the complaint's factual allegations as true, give the plaintiff the benefit of every favorable inference, and determine only whether the facts, as alleged, fit within any cognizable legal theory. 

Darden v. OneUnited Bank, NY Slip Op 04291 (2d Dep't July 29, 2020)

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Summary judgment in a slip-and-fall action.

The defendant has the burden of demonstrating, prima facie, that it did not create the alleged dangerous condition, or have actual or constructive notice of it for a sufficient length of time to discover and remedy it. A property owner who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition. A question of fact regarding a recurrent dangerous condition can be established by offering evidence that an ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed.

Darbinyan v. 1806 Ocean Realty, LLC, NY Slip Op 04290 (2d Dep't July 29, 2020)

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CPLR 306-b.

After the plaintiff admitted that its original affidavit of service was erroneous and failed to produce its process server when the parties appeared for a hearing to determine the validity of service of process, the Supreme Court denied the plaintiff's motion and granted the defendant's motion to dismiss. The Appellate Division affirmed.

CPLR 306-b provides, in pertinent part, that "[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action." The statute further provides that, "[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."

An extension of time for service is a matter within the trial court's discretion. In applying the statutory interest of justice standard, which is distinct from the good cause standard, the court must consider the facts and balance the parties' competing interests. The court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including the Statute of Limitations, the potentially meritorious nature of the cause of action, the length of the delay in service, the promptness of the plaintiff's request to extend time, and prejudice to the defendant.

Here, the plaintiff's delay of nearly five years between obtaining a default judgment of foreclosure and sale against the defendant and its attempt to enforce that judgment, during which time the statute of limitations expired, weighed against extending the time to serve the defendant with the summons and complaint by approximately nine years. In addition, the court found that the plaintiff was seeking statutory relief in order to avoid the consequences of its inability to produce its process server on the scheduled date of the hearing. 

Chase Home Fin., LLC v. Berger, NY Slip Op 04289 (2d Dep't July 29, 2020)

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Appellate practice.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment. The issues raised on appeal from the order are brought up for review, and are considered on the appeal from the judgment, pursuant to CPLR 5501[a][1].

Bowers v. Grier, NY Slip Op 04288 (2d Dep't July 29, 2020)

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CPLR 3215(f).

A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant's default, and the facts constituting the claim. In a declaratory judgment action, the judgment will not be granted on the default and the pleadings alone, since the plaintiff must establish its right to the declaration.

Ameriprise Ins. Co. v. Kim, NY Slip Op 04286 (2d Dep't July 29, 2020)

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CPLR 3211(a)(1).

A claim will be dismissed if the submission of documentary evidence conclusively establishes,  as a matter of law, a defense to the asserted claims. If the motion is not made before an answer is interposed, or preserved in a responsive pleading, it is waived.

M&E 73-75, LLC v. 57 Fusion LLC, NY Slip Op 04372 (1st Dep't July 30, 2020)

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CPLR 3215(c).

The statute provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." It is not necessary that the plaintiff actually obtain a default judgment within one year of the default in order to avoid dismissal.

Bank of Am., N.A. v. Wessen, NY Slip Op 04141 (2d Dep't July 22, 2020)

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Reasonable damages.

The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and the jury's determination will not be disturbed unless the award deviates materially from what is reasonable compensation. In determining whether a verdict constitutes reasonable compensation, courts will look to prior awards in cases involving similar injuries, as well as the nature and extent of the plaintiff's injuries.

Arcos v. Bar-Zvi, NY Slip Op 04139 (2d Dept July 22, 2020)

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An employer's liability for an independent contractor.

The general rule is that the employer is not liable for an independent contractor's negligent acts. Determining whether there is an employer-employee relationship depends on whether the purported employer exercises control over the results produced, or the means used to achieve the results, and control over the means is the more important consideration. Factors relevant in assessing control include whether the worker worked at his or her own convenience; was free to engage in other employment; received fringe benefits;  was on the employer's payroll; and was on a fixed schedule. Minimal or incidental control over the work product, absent the employer's direct supervision or input over the means used to complete the work, is insufficient to establish an employer-employee relationship.

Athenas v. Simon Prop. Group, L.P., NY Slip Op 04140 (2d Dep't July 22, 2020)

Here is the decision.