Improper service.

The Appellate Division unanimously affirmed the Order which denied plaintiff's motion for a default judgment. As it is undisputed that plaintiff did not make a reasonable attempt to personally serve defendants, in accordance with CPLR 308, service was improper. Because jurisdiction was not obtained over defendants, they were not required, in response to plaintiff's motion for a default judgment, to demonstrate a reasonable excuse for their default in answering the complaint, or a meritorious defense. 

Matter of Petre v. Lucia, NY Slip Op 06873 (1st Dep't November 19, 2020)

Here is the decision.

An account stated claim.

Plaintiff was entitled to summary judgment, as it submitted documentary evidence showing that defendant had received and retained the invoices without objection. Defendant's own written statements refute his argument that plaintiff was unauthorized to represent him, and that, when he terminated plaintiff, he had had objected to plaintiff's work. The termination, which occurred prior to defendant's receipt of the invoices, was rescinded by defendant shortly thereafter. Despite regular correspondence between plaintiff and defendant during the following months, there is no indication that he objected to plaintiff's invoices or continued representation. The legal malpractice counterclaims are not sufficiently intertwined with the account stated claim so as to preclude summary judgment.

Schlam Stone & Dolan LLP v. Toussie, NY Slip Op 06874 (1st Dep't November 19, 2020)

Here is the decision.

A contract executed by an individual in his corporate capacity.

As the individual defendant signed the original agreement in his corporate capacity, on behalf of the corporate defendant, he ordinarily would not be personally liable under the agreement. However, his signature without reference to his corporate capacity in the extension of the original agreement creates a fact issue as to the capacity in which he signed each agreement, as well as a fact issue as to whether the corporate defendant is liable under the agreements.

Inbar Group, Inc. v. St. Mark's World, Inc., NY Slip Op 06879 (1st Dep't November 19, 2020)

Here is the decision.

A landowner's duty of care.

The landowner owes a duty to maintain the property in a reasonably safe condition. The duty is premised on the landowner's exercise of control over the property, as the person in possession and control of[the property is best able to identify and prevent any harm to others. It has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property. A landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property. 

Augustine v. City of New York, NY Slip Op 06739 (2d Dep't November 18, 2020)

Here is the decision.

Appellate practice.

Petitioner's facial challenge to Social Services Law § 143-b cannot be considered, as it has not submitted proof that it served the Attorney General with the requisite notice of a challenge to the law's constitutionality, pursuant to CPLR 1012[b][3].

Matter of 20 W. Props. LLC v. Banks, NY Slip Op 06840 (1st Dep't November 19 2020)

Here is the decision.

Doctrine of primary assumption of risk.

Pursuant to the doctrine, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally, and those risks that flow from such participation. The doctrine encompasses risks involving less than optimal conditions on an irregular playing surface.

V.A. v. City of New York, NY Slip Op 06736 (2d Dep't November 18, 2020)

Here is the decision.

The Dormitory Authority's liability.

The Appellate Division unanimously reversed, on the law, the Order which granted petitioner's motion to serve a late notice of claim nunc pro tunc, denied the motion, and dismissed the petition. It is well settled that as an out-of-possession title owner, the Dormitory Authority does not bear liability for personal injuries suffered at CUNY buildings. Because the agency surrenders all control and possession to CUNY once a building is completed, it is not subjected to non-delegable duties that owners may have, such as providing safe working conditions pursuant to Labor Law 240(1) and 241(6).

Matter of Bento v. Dormitory Auth. of the State of N.Y., NY Slip Op 06698 (1st Dep't November 17, 2020)

Here is the decision.

Leave to amend.

The Appellate Division unanimously affirmed, with costs, the Order granting defendant Clarke's motion for summary judgment dismissing the breach of contract claim against it, denied plaintiff's motion to amend the complaint, and dismissed the complaint in its entirety as against Clarke. As Clarke was not a signatory to the agreements, no cause of action for breach of contract can be asserted against it. Each agreement plainly states it is between plaintiff and defendant Drescher, and contains a signature block for Drescher individually. Moreover, the first operative clause of the agreements makes clear that they are assignments of seller's - defined as Drescher - "rights, title and interest in and to" commissions upon closings of transactions with the identified companies. Leave to amend a pleading should be freely granted in the absence of prejudice or surprise, as long as the proposed amendment is not palpably insufficient as a matter of law. Here, the proposed amended complaint is palpably insufficient, as it alleges in conclusory fashion that Drescher acted on behalf of Clarke as its agent or alter ego.

Mashinsky v. Drescher, NY Slip Op 06397 (1st Dep't November 10, 2020).

Here is the decision.

Vacatur based on law office failure.

The Appellate Division unanimously affirmed the Order which, to the extent appealed from, vacated an order, entered on default, that dismissed the severed third-party action.  Plaintiff established that its default was attributable to law office failure by submitting its counsel's affirmation explaining that the lawyer who had been handling the case left the firm and failed to pass her work on to the firm's two partners. The Appellate Division said that plaintiff should not be deprived of its day in court on account of its attorney's neglect or inadvertent error. 

Morales v. Marion Ave. Mgt. LLC, NY Slip Op 06399 (1st Dep't November 10, 2020)

Here is the decision.

Premises liability.

Whether there is a dangerous or defective condition on the property so as to create liability depends on the peculiar facts and circumstances of each case, and, generally, is a question of fact for the jury to decide.  A defendant seeking dismissal on the basis that the alleged defect is trivial must make a prima facie showing that, under the circumstances, the defect is physically insignificant, and that the defect's characteristics or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact. There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable, and summary judgment may not be granted to a defendant exclusively on the dimensions of the defect.

Arpa v. 245 E. 19 Realty LLC, NY Slip Op 06444 (1st Dep't November 12, 2020)

Here is the decision.

Disqualification of a law firm.

Although an associate at plaintiffs' law firm was previously an associate with the firm that currently represents the defendants, disqualification is not required, as defendants fail to show that the issues in the matters are identical or essentially the same. Defendants fail to identify any material confidential information that the associate obtained from the defendants during the prior matters, referencing only generic legal documents and activities. The associate left the previous firm a year before the alleged malpractice that forms the basis of this claim.

Patane v. Tan, NY Slip Op 06458 (1st Dep't November 12, 2020)

Here is the decision.