A ceiling collapse.

The landlord failed to establish its entitlement to judgment as a matter of law in this action where plaintiff' seeks to recover damages for a ceiling collapse. The landlord failed to submit sufficient evidence showing that it neither created nor had actual or constructive notice of the hazardous condition. Plaintiff testified that she specifically notified the management company that her ceiling was "falling apart," and that she had a discussion in her bedroom with the super and a carpenter from the contractor doing renovation work on behalf of the landlord in the apartment above, during which she pointed out that dust was coming from her bedroom ceiling, and was told that the ceiling needed repairs Additionally, the building super and carpenter each testified that they observed multiple foot-long cracks in plaintiff's ceiling. The landlord submitted no evidence establishing that the area where they saw the cracks was distinguishable from the area which ultimately collapsed onto plaintiff.

For her part, plaintiff submitted sufficient evidence in opposition to raise a triable issue of fact, including an email in which she notified the building management that her ceiling was falling apart, and subsequent emails in which the renovation contractor informed management that cracks had formed in the ceiling.

The landlord failed to establish that, on these facts, the doctrine of res ipsa loquitur does not apply. A ceiling collapse does not ordinarily occur in the absence of negligence, and the landlord has not established that plaintiff's own negligence caused this accident. The fact that both the landlord and the contractor may have controlled plaintiff's ceiling does not preclude application of the doctrine. 

Wenzel v. All City Remodeling, Inc., NY Slip Op 03674 (1st Dep't June 10, 2021)

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Repudiating a contract.

When one party repudiates a contract, the other party is entitled to claim damages for a total breach by the repudiating party, and any future performance by the nonbreaching party is excused.

Alloy Advisory, LLC v. 503 W. 33rd St. Assoc., Inc., NY Slip Op 03529 (1st Dep't June 3, 2021)

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CPLR 3019(b).

In New York, cross claims may be asserted between defendants for any cause of action at all, regardless of whether they are related to the plaintiff's claim.

Feiger v. Ray Enters., LLC, NY Slip Op 03525 (1st Dep't June 3, 2021)

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Notices to admit.

A notice to admit is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, not for requesting admissions of material issues or ultimate or conclusory facts which can only be resolved after a full trial. The notice cannot be used to obtain information in lieu of other disclosure devices, such as the taking of depositions. Here, the motion court correctly found that both notices, which sought admissions of both ultimate and conclusory facts, were sufficiently responded to, and properly directed plaintiff to seek such information through discovery disclosure devices.

Genna v. Klempner, NY Slip Op 03526 (1st Dep't June 3, 2021)

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Appellate practice.

At issue is an Order which precludes defendants American University of Antigua and American Union of Antigua from participating in the damages trial, and, sub silentio, denied their motion in limine to enforce a prior evidentiary preclusion order against plaintiffs and their motion to preclude certain damages. The Order is appealable, because it decided a motion made on notice to enforce the preclusion order, and denied defendants' right to participate in the damages trial, thereby involving the merits of the controversy and affecting a substantial right, pursuant to CPLR 5701 [a] [2] [iv], [v].

Jeffers v. American Univ. of Antigua, NY Slip Op 03528 (1st Dep't June 3, 2021)

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Noncompete agreements and the practice of law.

At issue  is a law firm's employment agreement that prohibits a former associate attorney from engaging in any business that conducts the same or similar business as plaintiff for a period of 36 months, within 90 miles of New York City or in the Israeli community. The agreement also purports to prohibit the defendant attorney from directly or indirectly soliciting any business from customers or clients of plaintiff for a period of 36 months within 90 miles of New York City or in the Israeli community; or advertise on Israeli/Hebrew websites, TV or newspaper ads.

Rule 5.6(a)(1) of the Rules of Professional Conduct, codified as 22 NYCRR 1200.0, bars lawyers from "participat[ing] in offering or making a partnership, shareholder, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship." To the extent the noncompete provision seeks to prevent the defendant attorney from "conducting business activities that are the same or similar to those of [plaintiff]" within 90 miles of New York City or in the Israeli community, it is void and unenforceable. The solicitation of the firm's clients, however, is actionable.

Feiner & Lavy, P.C. v. Zohar, NY Slip Op 03407 (1st Dep't June 1, 2021)

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City agencies as defendants.

The Appellate Division affirmed the Order which granted defendant's motion to dismiss the complaint and denied plaintiff's cross motion to amend the complaint to add the City of New York. Defendant, the New York City Human Resources Administration (HRA), is a City agency and, thus, is not a proper party to this action, pursuant to NY City Charter § 396. Plaintiff's motion to substitute the City for HRA was properly denied, as it was already decided against him in a prior order in this action. In any event, the complaint fails to state a claim against HRA, as the allegations do not implicate the agency.

Komatsu v. New York City Human Resources Admin., NY Slip Op 03410 (1st Dep't June 1, 2021)

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June 6, 1944.

A cause of action for conversion of money.

Where the claim is asserted as to money, the funds must be specifically identifiable and be subject to an obligation to be returned or to be otherwise treated in a specified manner.  Here, the defendant-lawyer had put the funds into his IOLA account, which is an unsegregated interest-bearing bank account for an attorney's deposit of qualified funds, pursuant to Judiciary Law § 497. As the account is unsegregated, plaintiff's funds, upon their transfer therein, became commingled with monies that were already in it, rendering them no longer specifically identifiable. Even if the funds were specifically identifiable, the claim is insufficiently pled, as plaintiff did not make a demand for the return of the funds. Dismissed.

SH575 Holdings LLC v. Reliable Abstract Co., L.L.C., NY Slip Op 03427 (1st Dep't June 1, 2021)

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CPLR 3215(c).

In this medical malpractice action, the Appellate Division affirmed the Order which denied plaintiff's motion for a default judgment and dismissed the complaint as abandoned. Plaintif's excuse for her delay in seeking a default judgment was not reasonable: that she failed to notify her counsel that she moved to Puerto Rico, that her counsel had to hire an investigator to locate her to sign the affidavits of merit annexed to her moving papers after she moved to Puerto Rico, and that, for months, she did not return the affidavits of merit which had been sent to her.

Ventura v. Chhabra, NY Slip Op 03430 (1st Dep't June 1, 2021)

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A motion for a default judgment.

The Appellate Division affirmed the Order which, to the extent appealed from, denied plaintiff's motion for a default judgment against defendants. While defendants technically did not respond to plaintiff's motion for a default judgment, they appeared in the action before the motion was made, only shortly after the deadline to answer or move, and they moved to dismiss the action only one week after plaintiff made his motion for a default. In the motion to dismiss, defendants sufficiently responded to the arguments that plaintiff had made in the motion for a default judgment, asserting that they did not have sufficient time to move to dismiss the complaint because they had to research the action, having never actually been a party to the alleged retainer agreement with plaintiff, which they maintain was a forged document. Particularly given plaintiff's alleged fraud on the court, the motion court was within its discretion to excuse defendants' minor delay in moving to dismiss the complaint and their failure to submit a sworn statement in opposition to the motion.

Xiaoyong Zhang v Jong, NY Slip Op 03432 (1st Dep't June 1, 2021)

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