The Pothole Law.

Pursuant to Administrative Code of the City of New York § 7-201(c)(2), commonly known as the Pothole Law, no civil action may be maintained against the City for personal injuries resulting from an alleged dangerous condition in the roadway unless written notice of the defective condition was actually given to the appropriate person authorized to receive such notice, or there is a written acknowledgment from the City of the defective condition, and the City failed to repair it within 15 days of the notice. The prior written notice is a condition precedent which a plaintiff must plead and prove. The only recognized exceptions to the statutory notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality. The affirmative act of negligence exception is limited to work that immediately results in a dangerous condition.

Caballero v. City of New York, NY Slip Op 05540 (2d Dep't October 13, 2021)

Here is the decision.

Expert opinion in a defective design action.

The Appellate Division dismissed the claim because plaintiff failed to rebut defendant's prima facie showing that the van was not negligently designed. Where a qualified expert opines that a particular product is defective or dangerous, describes why it is dangerous, explains how it can be made safer, and concludes that it is feasible to do so, it is for the jury to make the required risk-utility analysis and decide whether the product was reasonably safe. However, an expert cannot raise an issue of fact to avoid summary judgment when the opinion consists of bare conclusory allegations of alleged defects or industry-wide knowledge. Here, plaintiffs' expert's assertions were unsupported by any data concerning the testing he purportedly performed, and which he described in conclusory terms and general statements. Plaintiffs pointed to reports concerning the alleged propensity of 15-passenger vans to roll over, but such reports are hearsay In addition, the tests performed in connection with those reports were computerized models of a generic passenger van, results rebutted by defendant in an on-track study showing that its van did not behave as the generic computerized model did. 

Richards v. Ford Motor Co., NY Slip Op 05469 (1st Dep't October 12, 2021)

Here is the decision.

Contract law and cure provisions.

A party's termination is ineffective where the contract provides for a notice-to-cure and notice is not given. There are limited circumstances where, despite being contractually required, notice is not necessary, such as where the other party expressly repudiates the contract or abandons performance. Notice is not required where the breach is impossible to cure, or so substantial that it undermines the entire contractual relationship such that it cannot be cured. This is based on the common law contract principle that a material breach that goes to the root of the matter or the essence of the contract constitutes grounds for rescission without opportunity to cure.

East Empire Constr. Inc. v. Borough Constr. Group LLC, NY Slip Op 05455 (1st Dep't October 12, 2021)

Here is the decision.

Sanctions for frivolous conduct.

Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the party's attorney for frivolous conduct. Conduct is frivolous if (1) it is completely without merit in law, and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.  A party seeking the imposition of sanctions or an award of attorney's fees has the burden of proof.

Glaubach v. Slifkin, NY Slip Op 05323 (2d Dep't October 6, 2021)

Here is the decision.

CPLR 3215(g)(3)(i).

The Appellate Division reversed the order which denied the individual defendant's motion to vacate a default judgment as against him, and granted the motion. The plaintiff mailed the summons to the defendant's places of business, not his place of residence, and failed to state that the place of residence was unknown. The burden is on the plaintiff to show that he did not know the defendant's place of residence, not on the defendant to prove that the plaintiff knew the place of residence.

Thomas v. Karen's Body Beautiful, LLC, NY Slip Op 05408 (1st Dep't October 7, 2021)

Here is the decision.

The implied covenant of good faith and fair dealing.

Where the express terms of a contract allow one party to terminate it in "its sole discretion" or "for any reason whatsoever," the covenant cannot serve to negate that provision.

Vendome v. Oldenburg, NY Slip Op 05409 (1st Dep't October 7, 2021)

Here is the decision.

A cause of action for breach of fiduciary duty.

The plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant's misconduct.

Glaubach v. Slifkin, NY Slip Op 05322 (2d Dep't October 6, 2021)

Here is the decision.

CPLR 5015(a)(3).

In order to prevail on a motion to vacate an order awarding summary judgment in a foreclosure action, the proponent must establish that the opponent procured the order by fraud, misrepresentation, or other misconduct. Broad, conclusory, and unsubstantiated allegations of fraud are insufficient. 

Deutsche Bank Natl. Trust Co. v. Le-Mond, NY Slip Op 05319 (2d Dep't October 6, 2021)

Here is the decision.

Admissibility of medical records in a personal injury action.

The defendant waived his right to object to the admission of the records as business records, as he failed to timely object after having been served with the plaintiff's notice of her intention to enter the documents into evidence, pursuant to CPLR 3122-a. The testimony of the office manager laid a proper foundation for the admission of the records, pursuant to CPLR 4518[a].

Benguigui v. Racer, NY Slip Op 05318 (2d Dep't October 6, 2021)

Here is the decision.

Termination of an at-will employee.

The Appellate Division affirmed, with costs, the order that granted the defendants' motion for summary judgment, dismissing the complaint. The plaintiff applied for a job at the defendants' restaurant, and was offered paid training sessions in contemplation of potential employment. The plaintiff alleges that she was wrongfully discharged when the defendants cancelled the training sessions. It is well-settled in New York that there is no cause of action for an at-will employee's wrongful discharge unless the termination of employment is constitutionally impermissible or statutorily proscribed, or unless there is an express limitation in an employment contract. Here, the defendants established  their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was, at best, an at-will employee and that her employment was not impermissibly terminated. In opposition, the plaintiff failed to raise a triable issue of fact.

Babalola v. Terry Vegetarian, LLC, NY Slip Op 05317 (2d Dep't October 6, 2021)

Here is the decision.

CPLR 3101(c).

Records which are attorney work product are specifically protected from disclosure. The records cannot be redacted under the Freedom of Information Law (FOIL), which permits redactions of records only under the personal privacy exemption.

Here is the decision.