Summary judgment on a fall on a staircase.

The Appellate Division reversed, granted the defendant's motion, and dismissed the complaint. The design defect raised in plaintiff's opposition to the motion was a new theory that was not sufficiently pleaded to avoid surprise or prejudice.

Minor v. East Harlem Tutorial Program, Inc., NY Slip Op 05288 (1st Dep't October 1, 2020)

Here is the decision.

A motion to reduce or discharge a mechanic's lien.

The Appellate Division reversed, denied the motion, and reinstated the lien. A court has no inherent power to vacate, modify, or discharge a notice of lien pursuant to Lien Law § 19(6) where there is no defect on the face of the lien, and any dispute concerning the lien's validity must await a trial. To the extent that the motion court relied on waivers in payment applications, plaintiff's submission of evidence of the parties' course of conduct raised an issue of fact as to whether the waivers released plaintiff's payment claims.

Pizzarotti, LLC v. FPG Maiden Lane LLC, NY Slip Op 05305 (1st Dep't October 1, 2020)

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CPLR 3213.

The Appellate Division reversed the Supreme Court, and denied the plaintiff's motion for summary judgment in lieu of complaint. Because the payment obligation in the parties' agreement is conditioned on defendant's having failed to operate the boat at issue within a particular geographic area for at least 80% of its running time over a period of years, the agreement is not an instrument for the payment of money only, and accelerated judgment is not available to the plaintiff.

Port Authority of N.Y. & N.J. v. White Near Coastal Towing Corp., NY Slip Op 05306 (1st Dep't October 1, 2020)

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An implied covenant of good faith and fair dealing.

The covenant cannot create independent contractual rights, or otherwise serve as a substitute for a plaintiff's nonviable contract claims.

Shionogi Inc. v. Andrx Labs, LLC, NY Slip Op 05308 (1st Dep't October 1, 2020)

Here is the decision.

Waiver of a jurisdictional defense.

The defendant's appearance, through counsel, by service of an answer asserting counterclaims but no jurisdictional defense, waived his subsequently asserted defense of lack of personal jurisdiction. His motion to vacate the order of foreclosure and sale must be denied insofar as it is based on lack of personal jurisdiction, pursuant to CPLR 5015(a)(4). Because the defendant voluntarily submitted to the court's jurisdiction, the alleged inaccuracies in the filed affidavits of service do not support vacatur of the prior summary judgment motion, pursuant to 5015(a)(3).

Wells Fargo Bank, N.A. v. Sewer, NY Slip Op 05170 (1st Dep't September 29, 2020)

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Summary judgment in a premises negligence action.

Where, as here, there is a question of fact as to an owner's negligence in the cause of the accident, a motion for summary judgment on a contractual defense and indemnification claim must be denied as premature. 

Williams v. 2897 Third Ave., Inc., LLC, NY Slip Op 05171 (1st Dep't September 29, 2020)

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Appellate practice.

An order denying a motion to compel a witness to answer questions propounded at a deposition is effectively a ruling made in the course of the deposition itself, and is not appealable as of right.

Gargano v. Langman, NY Slip Op 04923 (2d Dep't September 16, 2020)

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Appellate practice.

The limited appeal from the order must be dismissed, pursuant to CPLR 5511, on the ground that the defendant-appellant is not aggrieved by the portion of the order appealed from. While the Supreme Court denied several branches of the defendant's motion, the appeal is based solely on the branch of the motion that the court granted. As the successful party, the defendant obtained the full relief sought in that branch of his motion, and, therefore, has no grounds to appeal from that portion of the order.

Federal Natl. Mtge. Assn. v. Lautman, NY Slip Op  04921 (2d Dep't September 16, 2020)

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A general release and waiver of liability.

The defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by presenting a general release and waiver of liability signed by the plaintiff. If the language of the release is clear and unambiguous, it is binding on the parties and is a complete bar to an action on a claim which is the subject of the release. 

Durand v. Salvation Army, NY Slip Op 04919 (2d Dep't September 16, 2020)

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CPLR 305(c).

In the exercise of its discretion, the court may allow a summons or proof of service of a summons to be amended in the absence of prejudice to a substantial right of a party against whom the summons issued. The motion to cure a misnomer in the description of a party-defendant should be granted, even if the statute of limitations has run, where (1) there is evidence that the correct defendant has been properly served, and (2) the correct defendant would not be prejudiced by allowing the amendment.

Duncan v. Emerald Expositions, LLC, NY Slip Op 04918 (2d Dep't September 16, 2020)

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Constructive trusts.

The purpose of a constructive trust is to prevent unjust enrichment. It is an equitable remedy that may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest.

Derosa v. Estate of Iannazzo, NY Slip Op 04917 (2d Dep't September 16, 2020)

Here is the decision.