Appellate practice.

The Appellate Division determined that the appeal was timely filed. The panel rejected, as unpersuasive, plaintiffs' argument that the appeal should be dismissed because the notice of appeal from the judgment that incorporated the decision and order granting summary judgment was untimely.The initial filing was sufficient for jurisdictional purposes because the relief granted in the judgment is identical to that directed in the decision and order, pursuant to CPLR 5520 [c],

Vebeliunnas v. Overstrom, NY Slip Op 07732 (1st Dep't December 22, 2020)

Here is the decision.

The prevention doctrine.

If the promisor himself is the cause of the failure of performance of a condition on which his own liability depends, he cannot take advantage of the failure. The doctrine applies unless the parties contract around it, such as by including clear language allowing termination of the contract for any reason or at any time. Here, contrary to defendant's assertions, neither agreement provided defendant a unilateral right to terminate the contract. Instead, termination is clearly conditioned on defendant's right to operate being terminated by a third party, not itself, and no contractual language suggests the unqualified right defendant claims. The Appellate Division determined that the court providently granted plaintiff summary judgment on the breach of contract claim.

Vector Media, LLC v. Golden Touch Transp. of NY, Inc., NY Slip Op 07733 (1st Dep't December 22, 2020)

Here is the decision.

Elephant Walk.

The Appellate Division unanimously affirmed the Order which granted respondents' motion to dismiss the petition for a writ of habeas corpus on behalf of Happy, an elephant, and directed the Clerk to enter judgment dismissing the proceeding brought pursuant to CPLR article 70. The common-law writ of habeas corpus is limited to human beings. A judicial determination that species other than homo sapiens are "persons" for some juridical purposes, and, therefore, have certain rights would lead to a labyrinth of questions that common-law processes are ill-equipped to answer. The decisions of whether and how to integrate other species into legal constructs designed for humans is a matter better suited to the legislature.

Matter of Nonhuman Rights Project, Inc. v Breheny, NY Slip Op 07675 (1st Dep't December 17, 2020)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.