A motion to vacate a stipulation of settlement.

The motion court providently exercised its discretion in denying plaintiff's motion. The record includes a so-ordered stipulation signed by counsel following an allocution by plaintiff. In support of the motion, plaintiff only offers self-serving affidavits that he was debilitated when he entered into the settlement. Plaintiff's motion papers include a surgical report showing that he was debilitated when he received emergency medical treatment, five weeks after entering into the settlement. The report is neither admissible nor probative, as it is unaffirmed and uncertified, and it offers no opinion as to whether plaintiff was debilitated at the time of the settlement. There is nothing in the allocution transcript to indicate that plaintiff did not understand the proceedings.

Sultan v. Connery, NY Slip Op 06567 (1st Dep't November 23, 2021)

Here is the decision.

A special employer's liability on a Labor Law claim.

The action, as against a special employer, is barred by Workers' Compensation Law §§ 11 and 29. There is a rebuttable presumption against special employment. In order to rebut the presumption, the defendant must show  conclusively that it had assumed exclusive control over the manner, details, and ultimate result of the employee's work.

Winkler v. Halmar Intl., LLC, NY Slip Op 06569 (1st Dep't November 23, 2021)

Here is the decision.

CPLR 5001(a).

Where plaintiff commenced the action seeking equitable relief, he is not entitled to interest as if he had asserted a breach of contract claim.

Vogel v. Vogel, NY Slip Op 06568 (1st Dep't November 23, 2021)

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A claim of tortious interference with contract.

The essential elements are: (1) the existence of a valid contract between plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procuring of the breach; and (4) damages.

DeLibero v. Duloc, NY Slip Op 06571 (1st Dep't November 23, 2021)

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The merger doctrine in a real estate transaction.

Contractual provisions do not survive closing and transfer of the deed unless the agreement expressly states otherwise.

19 Stanton St. LLC v. 19 Stanton Realty LLC, NY Slip Op 06533 (1st Dep't November 23, 2021)

Here is the decision.

CPLR 3215(c).

The language of the statute is not discretionary, but mandatory, as it states that courts "shall" dismiss as abandoned claims for which a default judgment is not sought within the requisite one-year period. 

Deutsche Bank Natl. Trust Co. v. Watson, NY Slip Op 06340 (2d Dep't November 17, 2021)

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CPLR 3215[f].

A movant for a default judgment must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's failure to answer or appear. In order to defeat the motion, the defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense.

Deutsche Bank Natl. Trust Co. v. Pezzola, NY Slip Op 06339 (2d Dep't November 17, 2021)

Here is the decision.

Thanksgiving 1943.

Family Ct Act § 812 (2)(b).

"[A] family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection." In order to support a finding that a respondent has committed a family offense, the petitioner must prove the allegations by a fair preponderance of the evidence. In deciding a motion to dismiss a petition, the allegations in the petition, as well as the petitioner's evidence, must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom.

Matter of Phillip D.S. v. Shamel B., NY Slip Op 06460 (1st Dep't November 18, 2021)

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Contract law.

A contract is voidable on the ground of duress when it is established that the party making the claim was forced to agree to the contract by means of a wrongful threat precluding the exercise of free will. In order to rescind an agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness. In determining whether there has been overreaching, the court may examine the terms of the agreement and the surrounding circumstances. However, if the execution of the agreement is fair, no further inquiry will be made.

Barone v. Barone, NY Slip Op 06338 (2d Dep't November 17, 2021)

Here is the decision.

A Labor Law § 240(1) cause of action.

A fall from a scaffold, in and of itself, does not establish that the plaintiff was not provided with proper protection. Here, the plaintiff relies solely on his General Municipal Law § 50-h hearing testimony and his deposition testimony, which merely establish that he fell from a scaffold. The plaintiff fails to address whether there were scaffold rails, possible tie-off points for a harness, or some alternative fall protection. Without more, the plaintiff's testimony that he "moved [his] foot" to the left, causing him to step off of the scaffold and into an "empty space," and that "there was nothing there because [he] stepped on it and . . . thought it was something solid" is insufficient.

Torres v. New York City Hous. Auth., NY Slip Op 06207 (2d Dep't November 10, 2021)

Here is the decision.