A deficient notice of claim.

The Appellate Division affirmed the Order which granted defendants' motion for summary judgment dismissing the complaint. Plaintiff concedes that defendants are not liable for her injuries on the ground that they were negligent in failing properly to clear the sidewalk of snow and ice, because at the time she slipped and fell, there was a storm in progress, and therefore they had no legal duty to begin snow and ice removal efforts. Instead, in opposition to defendants' motion, plaintiff argues for the first time that defendants are liable because their employee negligently directed her to walk in an unsafe area. However, nowhere in her notice of claim, the complaint, or the verified bill of particulars does plaintiff allege that the employee directed her to go around his snow blower, causing her to step into an accumulation of snow that obscured the curb, from which she fell into the roadway. Contrary to plaintiff's contention, there is no allegation in her notice of claim, pleadings, or testimony that afforded defendants notice of this new theory of liability. Even if the pleadings and testimony had raised this new theory, plaintiff could not use them to rectify deficiencies in the notice of claim. Moreover, as the new theory would not have been authorized by General Municipal Law § 50-e(6), even if plaintiff had sought to amend the notice of claim, it is irrelevant whether defendants would be prejudiced by it.

Wilson v. City of New York, NY Slip Op 03931 (1st Dep't June 17, 2021)

Here is the decision.

Law of the case.

The prior order, affirmed by the Appellate Division, denying defendant's summary judgment motion, does not establish as law of the case that defendant was required to designate plaintiff as a tenant on the lease for the restaurant operated by defendant pursuant to a management agreement with plaintiff. The denial of the defendant's motion establishes only that there are triable issues of fact.

37 E. 50th St. Corp. v. Restaurant Group Mgt. Servs., LLC, NY Slip Op 03932 (1st Dep't June 17, 2021)

Here is the decision.

New York Supreme's general jurisdiction.

New York Supreme is a court of original, unlimited, and unqualified jurisdiction, pursuant to NY Const, art, VI, § 7[a].

21st Century Pharmacy v. American Intl. Group, NY Slip Op 03820 (2d Dep't June 16, 2021)

Here is the decision.

Preliminary injunctions and the element of irreparable harm.

The loss of the goodwill of a viable, ongoing business may constitute irreparable harm warranting the grant of preliminary injunctive relief.

Advent Software, Inc. v. SEI Global Servs., Inc., NY Slip Op 03807 (1st Dep't June 15, 2021)

Here is the decision.

Pre-discovery summary judgment.

Defendant's argument that discovery is required is unavailing, as the alleged factual issues raised by defendant are immaterial. They do not rebut plaintiff's prima facie showing of its entitlement to judgment as a matter of law or demonstrate the need for further inquiry into his defenses or counterclaims.

361 Broadway Assoc. Holdings, LLC v. Morales, NY Slip Op 03806 (1st Dep't June 15, 2021)

Here is the decision.

Assumption of the risk.

Plaintiff alleges that he was injured when, as a passenger sightseeing on defendant's boat, he stood up as the boat was rising up and down as a result of passing waves, then slipped and fell. Defendant established entitlement to judgment as a matter of law based on the doctrine of primary assumption of the risk., as his evidence shows that plaintiff's injuries arose from commonly appreciated risks inherent in the recreational activity in which he was engaged. 

Plaintiff' argues that, even if the primary assumption of the risk doctrine applies, he could not be deemed to have assumed certain increased risks beyond those inherent in the activity, noting the risks created by defendant's alleged reckless conduct in operating the boat, the presence of alcohol on board, the absence of life jackets, and his inexperience with boats. The Appellate Division rejected the argument as conclusory and otherwise unsupported by expert opinion or the circumstances of the incident.

Dismissed.

Paulino v. Braun, NY Slip Op 03668 (1st Dep't June 19, 2021)

Here is the decision.

A motion for civil contempt.

In order to prevail on the motion, the movant must prove, by clear and convincing evidence, that (1) there was a lawful court order, clearly expressing an unequivocal mandate; (2) the offending party disobeyed the order; (3) the offending party had knowledge of its terms; and (4) the movant was prejudiced by the offending conduct. When the movant establishes a knowing failure to comply with a clear and unequivocal court mandate, the burden shifts to the offending party to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order. The motion is addressed to the sound discretion of the court.

Matter of Weiss v. Rosenthal, NY Slip Op 03595 (2d Dep't June 9, 2021)

Here is the decision.

Stipulations of settlement.

Stipulations of settlement are favored by the courts and they are not lightly set aside, especially where the parties are represented by counsel. The stipulation is a contract which is enforceable according to its terms. As with any contract, its construction should give fair meaning to all of the language used by the parties, in order to reach a practical interpretation of the parties' expressions, so that their reasonable expectations will be realized.

Matter of Varone Irrevocable Trust, NY Slip Op 03596 (2d Dep't June 9, 2021)

Here is the decision.

Appellate practice.

Plaintiff's cross motion was properly denominated a motion to renew based on newly discovered evidence and was thus appealable as of right, pursuant to CPLR 2221[e].

Salvator v. 55 Residents Corp., NY Slip Op 03673 (1st Dep't June 10, 2021)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.