Venue.

The Appellate Division unanimously affirmed the Order which denied defendants' motion to change venue from New York County to Oneida County. Plaintiffs commenced this medical malpractice action in New York County, alleging that, in its certificate of incorporation, one of the defendants, Emergency Physician Services of New York (EPSNY), designated New York County as its principal office. In moving to change venue, defendants argued that EPSNY's most recent biennial statements, submitted in accordance with Business Corporations Law § 408, reflected its current corporate residence as Woodbury, New Jersey. The Appellate Division found that plaintiffs properly commenced the action in New York County, as, for venue purposes, the designation of New York County in EPSNY's papers filed with the Secretary of State controlled, even if it did not actually have an office in New York County. The principal executive office noted in a corporation's biennial statement does not determine corporate residence for venue purposes, since it is not contained in either a certificate of incorporation or an amended certificate.

Sultana v. St. Elizabeth Med. Ctr., NY Slip Op 05873 (1st Dep't October 20, 2020)

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Res ipsa.

The Appellate Division unanimously reversed the Order which granted defendant's motion for summary judgment dismissing the complaint, and denied the motion. In this action, plaintiff investigated a hissing sound coming from the electrical circuit box in her apartment, and, as she drew close to the circuit box, it suddenly burst into flame, burning her right arm. Plaintiff may raise res ipsa loquitur in opposition to defendant's motion without having alleged the doctrine in her notice of claim or complaint, as it is not a separate theory of liability, but, rather, an evidentiary rule that involves a common sense application of the probative value of circumstantial evidence. Plaintiff's evidence raised triable issues as to application of the doctrine, as it showed that she had resided in the apartment for 19 years, she would contact defendant's employees to remedy any issues with the circuit box, and defendant's employees handled the inspection, maintenance, and repair of the circuit box. To the extent that defendant argues the lack of notice of the alleged dangerous condition, there is a triable issue of fact regarding the applicability of the res ipsa doctrine, and, under the doctrine, proof of notice may be inferred.

Townsend v. New York City Hous. Auth., NY Slip Op 05874 (1st Dep't October 20,2020)

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A motion to vacate a default judgment.

The Appellate Division affirmed the Order which denied the motion. Defendant failed to demonstrate a reasonable excuse for his default and a meritorious defense to the action because he submitted his motion without an affidavit by someone with personal knowledge of the pertinent facts, namely, defendant himself. The affirmation by his counsel, who lacked personal knowledge, was insufficient for this purpose. Regardless, defendant's incarceration does not constitute a reasonable excuse for his default, given that he does not contest the receipt of service and he was afforded six months to respond to plaintiff's motion. Defendant did not  demonstrate a meritorious defense by arguing that a subsequent consulting agreement with plaintiff's son, who is not a party to the sued-upon note, superseded his obligations to plaintiff under the note.

Yaffe v. Shkreli, NY Slip Op 05875 (1st Dep't October 202020)

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Failure to comply with discovery obligations.

The Appellate Division found that the motion court providently exercised its discretion in dismissing the complaint, pursuant to CPLR 3126. based on plaintiff's failure to comply with her discovery obligations. While asserting that she complied with her obligations, plaintiff failed to respond to defendants' specific allegations of deficiencies. The record shows that some discovery was provided belatedly or in improper form, items are missing, and depositions have not been completed. Moreover, plaintiff's noncompliance was the subject of multiple prior motions to dismiss, good faith letters, and discovery stipulations and orders, and so willfulness may be inferred.

Ruiz v. Selzer, NY Slip Op 05835 (1st Dep't October 15, 2020)

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Summary judgment in a slip-and-fall action.

Defendant submitted the affidavits of its building manager and a porter, who both stated that it was defendant's practice to clean the stairwell twice a day, and that the porter cleaned the stairwell on the day of the accident and prior to plaintiff's fall and did not see any debris on the staircase. These affidavits cannot be considered because defendant only identified those witnesses after it filed its motion, despite plaintiffs' prior request that defendant identify all employees with knowledge of the facts and circumstances of the accident, and numerous court orders directing defendant to do so.

Verges v. Concourse Residential Hotel, Inc., NY Slip Op 05708 (1st Dep't October 13, 2020)

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A promissory estoppel claim.

The claim fails, as there is neither a clear and unambiguous statement nor any detrimental reliance.

Weisenfeld v. Iskander, NY Slip Op 05710 (1st Dep't October 13, 2020)

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A slip-and-fall claim.

The Appellate Division reversed the Order which granted defendant's motion for summary judgment dismissing the complaint, and denied the motion.  In this action where plaintiff alleges that she slipped and fell on grease as she descended the stairs in defendant's building, defendant failed to establish its prima facie entitlement to summary judgment. Defendant did not demonstrate that it lacked constructive notice of the grease, as it failed to show when the stairwell was last cleaned or inspected. Proof of a regular maintenance schedule does not suffice for the purpose of showing that it was followed, and since the superintendent was due to clean the hallways and stairs on the day of the accident, plaintiff's observation of debris on the stairs shows that no such maintenance was done prior to her fall. Because defendant did not meet its initial burden of showing, as a matter of law, that it lacked constructive notice of the alleged defective condition, the burden never shifted to plaintiff to demonstrate how long the condition existed.

White v. MP 40 Realty Mgt. LLC, NY Slip Op 05838 (1st Dep't October 15, 2020)

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A Yellowstone injunction.

The Appellate Division affirmed the Order which granted plaintiff's application. Contrary to defendant's contention, plaintiff fulfilled the four criteria for Yellowstone relief, namely, that (1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises.

80 Broad Relief Assoc., LLC v. BSD 80 Broad LLC, NY Slip Op 05805 (1st Dep't October 15, 2020)

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An alleged oral agreement.

Because the terms of the alleged agreement are not definite, the complaint and supporting materials fail to plead the existence of an enforceable oral contract. The consideration owed to a non-party is described inconsistently, and the arrangement between plaintiff and the non-party is described in different ways in emails among plaintiff, the non-party, and defendant.

Streit v. Bombart, NY Slip Op 05706 (1st Dep't October 13, 2020)

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A motion to disqualify an arbitrator.

The Appellate Division affirmed the  Order which denied defendant's motion to disqualify the arbitrator and vacate his rulings. Defendant failed to demonstrate implicit gender bias against its female sole general partner in the arbitrator's comments in an email and throughout the course of the proceedings. The Appellate Division noted that plaintiff's principal and representative in the arbitration proceeding are women.

Vitra, Inc. v. Ninety-Five Madison Co., L.P., NY Slip 05709 (1st Dep't October 13, 2020)

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Appellate practice.

While discovery determinations rest with the sound discretion of the motion court, the Appellate Division is  vested with corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse of discretion. Here, the Appellate Division declined to disturb the motion court's determination. Plaintiff failed to demonstrate that its discovery requests would yield information that was material and necessary to its defense against the counterclaims asserted against it.

Monitronics Intl, Inc. v. NorthStar Alarm Servs., LLC, NY Slip Op 05584 (1st Dep't October 8, 2020)

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