The Appellate Division affirmed, with costs, the Order which granted plaintiff's motion for summary judgment and an order of reference, and denied defendants' cross motion to dismiss the complaint. Defendants are collaterally estopped from relitigating the timeliness of the foreclosure action, which was decided in the court's prior order and affirmed on appeal.
True Gate Holding, Ltd. v. Baroukhian, NY Slip Op 04588 (1st Dep't July 29, 2021)
Tomorrow's issue: Premises liability.
An appeal from a final judgment brings up for review any non-final judgment or order which necessarily affects the final judgment, provided that such non-final judgment or order has not previously been reviewed by the court to which the appeal is taken, pursuant to CPLR 5501[a][1]. Thus, only an appeal from a final judgment will bring up for review prior nonfinal orders.
Shah v. 20 E. 64th St., LLC, NY Slip Op 04587 (1st Dep't July 29, 2021)
Tomorrow's issue: Collateral estoppel.
In order to establish a physician's liability, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that the alleged departure was a proximate cause of the plaintiff's injuries. Generally, expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause. The expert witness's opinions must be based on facts in the record or personally known to the witness.
Bacchus-Sirju v. Hollis Women's Ctr., NY Slip Op 04538 (2d Dep't July 28, 2021)
Tomorrow's issue: Appellate practice.
As a general rule, liability for a dangerous condition does not extend to a prior owner of the premises. There is a narrow exception to the general rule, and there may be liability where a dangerous condition existed at the time of the conveyance, and the new owner has not had a reasonable time to discover the condition if it was unknown, or to remedy the condition once it became known.
Hayden v. 334 Dune Rd., LLC, NY Slip Op 04481 (2d Dep't July 21, 2021)
Tomorrow's issue: A claim for medical malpractice.
Where a foreclosure complaint is not verified, an application for a judgment by default must include an affidavit that sets forth proof of the facts, the default, and the amount due. Here, in support of its motion, the plaintiff submitted an affidavit of merit executed by a "Document Execution Specialist" who was employed by the plaintiff's servicing agent. The affiant asserted that she had personal knowledge of the merits of the plaintiff's cause of action based upon her review of various business records. However, since the plaintiff failed to attach the business records upon which the affiant relied, her factual assertions based on those records constitutes inadmissible hearsay, and her affidavit is insufficient to demonstrate proof of the facts constituting the claim.
Deutsche Natl. Bank Trust Co. v. Hossain, NY Slip Op 04480 (2d Dep't July 21, 2021)
Tomorrow's issue: A prior property owner's liability.
Although no appeal lies from a judgment entered upon the default of an appealing party, pursuant to CPLR 5511, the appeal from such a judgment brings up for review those matters which were the subject of contest before the Supreme Court.
Deutsche Natl. Bank Trust Co. v. Hossain, NY Slip Op 04480 (2d Dep't July 21, 2021)
Tomorrow's issue: CPLR 3215(f).
Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that was raised, or could have been raised, in the prior proceeding. The doctrine of collateral estoppel, which applies only to parties who were either a party, or in privity with a party, to a prior action or proceeding, also bars relitigation of an issue which has necessarily been decided in that prior action or proceeding and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling. In order to establish privity with respect to either res judicata or collateral estoppel, the connection between the parties must be such that the interests of the nonparty can be said to have been represented in the prior proceeding. Although relationship alone is not sufficient to support preclusion, privity includes those who are successors to a property interest, those who control an action although not formal parties to it, and those whose interest are represented by a party to the action. The party asserting the conclusive effect of a prior judgment has the burden to establish it.
Bravo v. Atlas Capital Group, LLC, NY Slip Op 04478 (1st Dep't July 21, 2021)
Tomorrow's issue: Appellate practice.
The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained when she slipped and fell on ice on a curb. The defendant moved for summary judgment dismissing the complaint, invoking the storm in progress doctrine. The Supreme Court granted the motion, and the Appellate Division reversed, finding that the defendant failed to meet its initial burden as the movant. Contrary to the defendant's contention, the three pages of climatological data that it submitted in support of its motion should have been authenticated because these pages themselves did not indicate that the data contained therein was "taken under the direction of the United States weather bureau," as the statute requires.
Beaton v. City of New York, NY Slip Op 04477 (2d Dep't July 21, 2021)
Tomorrow's issue: The doctrines of res judicata and collateral estoppel.
A claim will be dismissed as duplicative where the cause of action arises from the same facts as another cause of action and does not allege distinct damages.
Steven B. v. Westchester Day Sch., NY Slip Op 04476 (2d Dep't July 21, 2021)
There is a waiver when a party affirmatively puts the subject matter of its own privileged communication at issue in the litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information. However, the fact that privileged communications may contain information that is relevant to issues that are being litigated does not, without more, put the contents of the privileged communication itself at issue.
U.S. Bank Natl. Assn. v. Lightstone Holdings LLC, NY Slip Op 04537 (1st Dep't July 22, 2021)
Tomorrow's issue: Dismissal of a claim as duplicative.
In considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, the court must afford the pleading a liberal construction, accept all facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.
Steven B. v. Westchester Day Sch., NY Slip Op 04476 (2d Dep't July 21, 2021)
Tomorrow's issue: Subject matter waiver of a privilege.