Collateral estoppel.

Collateral estoppel does not bar plaintiffs from seeking indemnification and contribution, as the issue of defendants' and their subcontractor's negligence was not raised, necessarily decided, and material to the underlying personal injury action of the subcontractor's employee against plaintiffs and an unrelated company. As this action was severed from the underlying action before issue was joined, defendants were not parties in the underlying trial, and they proffer no evidence that the jury therein was instructed on apportionment of negligence to nonparties.

One Bryant Park v. Permasteelisa Cladding Tech., Ltd., NY Slip Op 07677 (1st Dep't December 17, 2020)

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The danger invites rescue doctrine.

There is a duty of care to a potential rescuer where a culpable party has placed another person in a position of imminent peril which invites a third party,to come to the aid of the person in peril. The doctrine is implicated where a potential rescuer reasonably believes that someone is in peril. A court will determine the applicability of the doctrine on the facts and circumstances of each case.

Benny v. Concord Partners 46th St. LLC, NY Slip Op 07665 (1st Dep't December 17, 2020)

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Sexual harassment.

The issue in a quid pro quo sexual harassment case brought under the State Human Rights Law is whether one or more employment decisions are linked to unwelcome sexual conduct. Sexual harassment occurs when such unwelcome sexual conduct is the basis, either explicitly or implicitly, for employment decisions affecting compensation or the terms, conditions, or privileges of employment. An employer can also be held liable for a hostile work environment when it encouraged or acquiesced in the unwelcome sexual conduct by an employee or subsequently condoned the offending behavior. Proof of condonation and acquiescence is not necessary where discriminatory conduct is perpetrated by a high-level managerial employee or someone sufficiently elevated in the employer's business organization to be viewed as its proxy. Under the City Human Rights Law, gender discrimination rests on the broader consideration of whether a plaintiff has been treated less well than other employees because of gender. Whether brought under the State or the City Human Rights Law, the claim will not succeed if the offending actions are no more than petty slights or trivial inconveniences.

Franco v. Hyatt Corp., NY Slip Op 07522 (1st Dep't December 15, 2020)

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Summary judgment motions.

Disputed factual issues, especially those that require resolution of credibility issues, are generally unsuitable for summary adjudication.

Franco v. Hyatt Corp., NY Slip Op 07522 (1st Dep't December 15, 2020)

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Law of the case.

The motion court properly applied the law of the case doctrine in dismissing the third amended complaint (TAC), as the claims in the TAC are essentially the same as those in the dismissed second amended complaint. 

MBF Clearing Corp. v. JPMorgan Chase Bank, N.A., NY Slip Op 07504 (1st Dep't December 15, 2020)

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Wills.

If a mother and father enter into a civil or religious marriage after the birth of their child, the child is legitimated for all purposes of New York law, even if the marriage is void or voidable, pursuant to Domestic Relations Law § 24[1]. Therefore, the child automatically becomes a distributee of both birth parents, without any need to satisfy one of the paternity tests set forth in Section 4-1.2(a)(2) of the EPTL.

Tiwary v. Tiwary, NY Slip Op 07479 (1st Dep't December 10, 2020)

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Scrivener's errors.

CPLR 305(c) and 3025(b) contemplate the correction of scrivener's errors, such as the misnomer in the petition, where the court's jurisdiction is unaffected and the opposing party suffered no prejudice.

Matter of Tsoumpas 1105 Lexington Equities, LLC  v. 1109 Lexington Ave. LLC, NY Slip Op 07481 (1st Dep't December 10, 2020)

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Appellate practice.

The appeal from the Order  which denied plaintiff's motion for reargument is unanimously dismissed as taken from a nonappealable paper.

Mandel v. 340 Owners Corp., NY Slip Op 07316 (1st Dep't December 8, 2020)

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Appellate practice.

Defendant's argument that plaintiffs and the third-party defendant failed to timely object to their discovery demands is unpreserved for review, as it was never raised before the motion court. Moreover, the timeliness of plaintiffs' and the third-party defendant's objections is not a pure question of law appearing on the face of the record, which could not have been avoided if raised at the proper juncture.

McMahon v. Cobbletsone Lofts Condominium, NY Slip Op 07317 (1st Dep't December 8, 2020)

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An unenforceable release.

This action for damages resulting from a fall on the premises of an outdoor music festival is not barred by the release allegedly obtained by defendants in connection with the online ticket purchase. The release is void and unenforceable, pursuant to General Obligations Law § 5-326. The grounds on which the music festival was held were a place of amusement or recreation or a similar establishment, and plaintiff paid a fee to the owners and operators of the event to participate in the festival.

Nicaj v. Bethel Woods Ctr. for the Arts, Inc., NY Slip Op 07318 (1st Dep't December 8, 2020)

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Breach of contract and an award of attorneys' fees.

The Appellate Division unanimously affirmed the Order which, to the extent appealed from as limited by the briefs, after a non-jury trial, found and declared defendant liable for breach of contract for terminating the parties' management agreement without providing notice and an opportunity to cure, and awarded plaintiffs nominal damages and reasonable attorneys' fees. The Appellate Division unanimously affirmed the Order, of the same court and Justice, which denied defendant's motion pursuant to CPLR 4404(b) to vacate the award of attorneys' fees.

The trial court properly awarded attorneys' fees to plaintiffs pursuant to the parties' management agreement. The gravamen of the original complaint was that defendant had improperly terminated the management agreement without providing plaintiffs with sufficient notice and an opportunity to cure. On pretrial motions, the motion court repeatedly found that plaintiffs' alleged breaches were curable, and the Appellate Division affirmed those findings. The trial court's finding that defendant breached the management agreement solidified plaintiffs' status as the prevailing party. Plaintiffs also successfully defended against the affirmative defenses. The fact that plaintiffs recovered only nominal damages does not affect their status as prevailing party.

The trial court correctly found that defendant breached the contract by improperly terminating the management agreement. Defendant argues that it was not liable for breach because plaintiffs' own breaches were so dishonest and outrageous that they were incapable of being cured. However, in a prior appeal, the Appellate Division affirmed the ruling that plaintiffs' breaches were curable, and further inquiry into this issue is foreclosed by the law of the case doctrine.

The trial court correctly concluded that plaintiffs failed to prove actual damages, and, therefore, were entitled to nominal damages only. The Appellate Division found no reason to disturb the court's determination that plaintiffs' proof of lost profits was too speculative or that their expert's conclusions and projections were not credible.

Quik Park W. 57 LLC v. Bridgewater Operating Corp., NY Slip Op 07323 (1st Dep't December 8, 2020)

Here is the decision.