Legal malpractice.

The Appellate Division determined that Supreme Court properly dismissed plaintiff's legal malpractice cause of action in the original complaint because he failed to allege that "but for" defendant's negligent conduct, he would have prevailed in the underlying action. Plaintiff's citation to a ruling in the underlying action denying dismissal of his fraud claim, among others, did not, without more, show that he would have prevailed in the underlying action had defendant timely commenced it by naming the proper parties in the original complaint.

Markov v. Barrows, NY Slip Op 04780 (1st Dep't August 2, 2022)

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Summary judgment.

The Appellate Division affirmed the denial of plaintiff's motion for summary judgment on its claim for unpaid premiums due. The motion was made before any discovery had been conducted and, therefore, was premature. In opposition, defendant pointed out that this was plaintiff's second motion and that no new evidence had been presented. It submitted an affidavit by its president, who averred, "Plaintiff possesses documents that will prove my defenses against their claim against me, and discovery is needed in order to obtain these documents." In addition, defendant raised an issue of fact as to the accuracy of the audit on which the premium was based by submitting an affidavit by a certified public accountant with personal knowledge of the audit who averred that he had communicated with plaintiff's auditor that the audit was incorrect and requested a second audit.

Burlington Ins. Co. v. 54th St. Auto Ctr., Inc., NY Slip Op 04779 (1st Dep't August 2, 2022)

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Res judicata and collateral estoppel.

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 either was raised or could have been raised in the prior proceeding.

The doctrine of collateral estoppel precludes a party 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 tribunals or causes of actions are the same. There are two requirements for its application: first, the identical issue necessarily must have been decided in the prior action and be decisive in the present action, and second, the party to be precluded must have had a full and fair opportunity to contest the prior determination. The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination.

Cullen v. Moschetta, NY Slip Op 04713 (2d Dep't July 27, 2022)

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Waiver of an objection to personal jurisdiction.

The filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss, pursuant to CPLR 3211(a)(8), for lack of personal jurisdiction.

Wilmington Trust Co. v. Valdivieso, NY Slip Op 04757 (2d Dep't July 27, 2022)

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Discovery disputes.

Resolution of discovery disputes and the nature and degree of any penalty to be imposed, pursuant to CPLR 3126, is within the sound discretion of the motion court. When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court's discretion to strike or dismiss a pleading. The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time

Here, the plaintiff's repeated failure to appear for a deposition, in violation of multiple Supreme Court orders, coupled with his failure to demonstrate a reasonable excuse for that failure, supports an inference that his conduct was willful and contumacious. It was a provident exercise of the court's discretion to grant the defendant's motion to strike the complaint.

Sheikh v. Poplardo, NY Slip Op 04753 (2d Dep't July 27, 2022)

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Failure to appear at a hearing.

A party seeking to vacate an order entered upon his failure to appear at a hearing must demonstrate a reasonable excuse for the default and a potentially meritorious claim or defense to be raised at the hearing, pursuant to CPLR 5015[a][1]. The motion court has to discretion to determine what is a reasonable excuse, and the court may accept law office failure, pursuant to CPLR 2005. Mere neglect is not a reasonable excuse.

Here, the plaintiff attributed its failure to appear on the adjourned hearing date to law firm neglect and lack of diligence in properly calendaring the adjournment. This is not a reasoable excuse, and the motion to vacate is denied.

Residential Mtge. Loan Trust v. Battle, NY Slip Op 04750 (2d Dep't July 27, 2022)

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Legal malpractice.

A plaintiff seeking to recover damages for legal malpractice must prove that the defendant-attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. A defendant seeking summary judgment dismissing the claim must establish, prima facie, that he did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages. In order to establish causation, a plaintiff must show that he would have prevailed in the underlying action, or that, but for the lawyer's negligence, he would not have incurred any damages.

Here, the plaintiff retained the defendant-law firm to represent her in a personal injury action against the driver of the car that struck her while she was leaving work. After the plaintiff became dissatisfied with the firm's representation of her, she discharged the firm. Thereafter, the plaintiff applied for Workers' Compensation benefits, but the claim was denied as time-barred because it was filed more than two years after the accident. The plaintiff alleges that the firm committed malpractice because it failed to file for Workers' Compensation benefits on her behalf and misadvised her regarding her right to file a Workers' Compensation claim. 

The firm demonstrated, prima facie, that the plaintiff would not have prevailed in her claim for Workers' Compensation benefits. The evidence established that the underlying accident was related to a risk shared by the general public, as opposed to a special hazard connected to the plaintiff's employment. The plaintiff failed to raise a triable issue of fact, and the firm's summary judgment motion dismissing the complaint is granted.

Provenzano v. Cellino & Barnes, P.C., NY Slip 04749 (2d Dep't July 27, 2022)

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Liquidated damages.

Whether a liquidated damages provision in a contract is an unenforceable penalty is a question of law for the court. The party seeking to avoid liquidated damages has the burden to prove that they are an unenforceable penalty. If the amount is grossly disproportionate to the probable loss, the provision is a penalty, and courts will not enforce it.  In the absence of any countervailing public policy concerns, freedom of contract prevails in an arm's length transaction between sophisticated parties.

Seymour v. Hovnanian, NY Slip Op 04705 (1st Dep't July 26, 2022)

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Appellate practice.

There is no appeal as of right from an order that is not made on notice.

Chen v. Romona Keveza Collection LLC, NY Slip Op 04702 (1st Dep't July 26, 2022)

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In this foreclosure action, the plaintiff's mailing of a 90-day notice did not comply with RPAPL 1304. Although defendants failed to raise this point before the motion court, the issue of plaintiffs' strict compliance with the statute was before the motion court and the noncompliant nature of the notice may be addressed on appeal, as the deficiency is apparent on the face of the record and could not have been avoided if it had been brought to the court's attention at the time.

U.S. Bank N.A. v. Maioriello, NY Slip Op 04706 (1st Dep't July 26, 2022)

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Plaintiff's failure to appear at a conference.

In order to vacate a default in appearing at a scheduled court conference, the plaintiff must demonstrate both a reasonable excuse and a potentially meritorious cause of action. The court may accept law office failure as a reasonable excuse where there is a detailed and credible explanation. Mere neglect is not a reasonable excuse.

Bambrick v. City of New York, NY Slip Op 04617 (2d Dep't July 20, 2022)

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A premises liability action.

Prroperty owners and parties in possession or control of real property have a duty to maintain the property in a reasonably safe condition. In moving for summary judgment, the defendant has the initial burden of making a prima facie showing that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it. There is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. Whether the condition is dangerous or defective depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury, precluding summary dismissal.

R.B. v. Sewanhaka Cent. High Sch. Dist., NY Slip Op 04616 (2d Dep't July 20, 2022)

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