CPLR 3025[b].

Absent prejudice or surprise resulting directly from the delay in seeking leave, an application to amend or supplement a pleading is to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. The party opposing the motion has the burden of demonstrating prejudice or surprise, or that the proposed amendment is palpably insufficient or patently devoid of merit.

Oppedisano v. D'Agistino, NY Slip Op 04223 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  Contract law and lost profits.

General Municipal Law § 50-e[5].

In determining whether to grant a petition for leave to serve a late notice of claim or to deem a late notice of claim as timely, nunc pro tunc, the court must consider all relevant circumstances, including whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the delay would substantially prejudice the public corporation in its defense, and whether the claimant demonstrates a reasonable excuse for the failure to serve a timely notice.  The lack of a reasonable excuse is not dispositive where, as here, there is actual notice and an absence of prejudice.

Matter of Duke v. Westchester Med. Ctr., NY Slip Op 04223 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 3025[b].

The doctrine of collateral estoppel.

Under the doctrine, a party is precluded from relitigating in a subsequent action or proceeding an issue that was clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the court or the causes of action are the same. The doctrine applies if the issue in the second action or proceeding is identical to a material issue which was raised and necessarily decided in the first action or proceeding, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action or proceeding. Here, in a prior action, neither the Appellate Division nor the Supreme Court decided the issue raised in this proceeding, namely, whether the New York City Board of Standards and Appeals acted arbitrarily or capriciously in rendering its determinations regarding the issuance of certain building permits. Consequently, the doctrine of collateral estoppel does not preclude the petitioner from raising that issue in this proceeding.

Matter of Arcamone-Makinano v. Perlmutter, NY Slip Op 04222 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  General Municipal Law § 50-e[5].

Real property and the duty of care.

While a possessor of real property has a duty to maintain its premises in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous.

Morrissette v. Kismat Indian Rest., Inc., NY Slip Op 04220 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  The doctrine of collateral estoppel.

The doctrine of primary assumption of risk.

Under 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 flow from the participation. Inherent risks in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of participation, including risks associated with the construction of the playing surface and any open and obvious condition on it. It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which the injury occurred, so long as the plaintiff is aware of the potential for injury of the mechanism from which the injury results. When a plaintiff assumes the risk of participating in a sporting event, the defendant is relieved of legal duty to the plaintiff; and being under no duty, the defendant cannot be charged with negligence.

Goulet v. Pier 2 Roller Ring at Brooklyn Bridge Park, NY Slip Op 04216 (2d Dep't July 7 2021)

Here is the decision.

Tomorrow's issue:  Real property and the duty of care.

Election of remedies.

Where there is a bona fide dispute as to the existence of a contract, the plaintiff need not elect its remedies and may proceed upon theories of unjust enrichment or quasi-contract.

Emby Hosiery Corp. v. Tawil, NY Slip Op 04214 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  The doctrine of primary assumption of risk.

CPLR 213[4].

An action to foreclose a mortgage is subject to a six-year statute of limitations. Where the mortgage is payable in installments, a separate cause of action accrues for each unpaid installment, and the limitations period begins to run on the due-date of each installment. However, once a mortgage debt is accelerated, the entire amount is due, and the statute of limitations begins to run on the entire debt. Acceleration of a mortgage debt requires an unequivocal overt act, such as the commencement of a foreclosure action which specifically invokes that relief. However, where the acceleration occurred by virtue of the filing of a complaint, the noteholder's voluntary discontinuance of that action constitutes, as a matter of law, an affirmative act of revocation of the acceleration, absent an express, contemporaneous statement to the contrary by the noteholder. 

Citibank, N.A. v. Kletzky, NY Slip Op 04213 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  Election of remedies.

CPLR 3213.

The assertion of a defense based on facts extrinsic to the instrument at issue is insufficient to defeat a motion for summary judgment in lieu of complaint.

Deka Immobilien Inv. GmbH v. Lexington Ave. Hotel, L.P., NY Slip Op 04275 (1st Dep't July 8, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 2314[b].

Email settlements.

The rule in the First Department is that when an attorney hits "Send" with the intention of relaying a settlement offer or acceptance, and the email account is identified in some way as the attorney's own, it is not necessary for the attorney to type his own signature.  However, this does not mean that every email purporting to settle a dispute will be unassailable evidence of a binding settlement. First, because there is a rebuttable presumption that an email from an attorney's account is authentic, a party that claims an email was the product of a hacker may challenge its authenticity. Second, as with all enforceable settlements, an email settlement must set forth every material term. 

Matter of Philadelphia Ins. Indem. Co. v. Kendall, NY Slip Op 04284 (1st Dep't July 8, 2021)

Here is the decision.

Civil contempt.

The Appellate Division affirmed, with costs, the Order which held defendant in civil contempt of court and ordered that he pay a fine of $500 per day until the contempt is purged. Clear and convincing evidence supports the court's entry of the contempt order. The record establishes that defendant disobeyed the plain terms of the court's earlier order requiring compliance with the subpoena, which clearly mandated that he respond to the subpoena "fully, completely, and truthfully" by March 10, 2020. Defendant failed to provide any answers to the subpoena by the deadline, submitting his first responses nearly three months later. When defendant finally did respond to the subpoena in June 2020, he submitted information that was demonstrably incomplete and untruthful. Defendant's reliance on the COVID-19 pandemic as an excuse for his noncompliance is unavailing He was served with the subpoena in June 2019, months before the pandemic. Moreover, not all of the information defendant was ordered to turn over required collection from third parties or outside sources. Finally, his failure to appear at the contempt hearing - despite having been offered the option of attending via videoconference, and being on notice that his failure to appear could result in his arrest - was, in and of itself, sufficient grounds for a finding of contempt.

Sang Cheol Woo v. Spackman, NY Slip Op 04287 (1st Dep't July 8, 2021)

Here is the decision.

Leave to amend.

While a motion for leave to amend should not be granted if the nonmoving party would be prejudiced by the delay, the need for additional discovery does not constitute prejudice sufficient to justify denial of an amendment. Here, the parties do not dispute that depositions have not taken place and discovery is not otherwise complete, and the motion is granted.

322 W. 47th Street HDFC v. Tibaldeo, NY Slip Op 04199 (1st Dep't July 6, 2021)

Here is the decision.