Leave to amend a bill of particulars.

Generally, in the absence of prejudice or surprise, leave to amend a bill of particulars should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. However, once discovery is completed and the case has been certified as ready for trial, a party will not be permitted to amend except upon a showing of special and extraordinary circumstances.  Leave may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant. In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion is predicated, whether there is a reasonable excuse for the delay, and whether there is any resulting prejudice.

Achee v. Merrick Vil., Inc., NY Slip Op 04888 (2d Dep't August 10, 2022)

Here is the decision.

A negligent hiring claim.

There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.

Maldonado v. Allum, NY Slip Op 04798 (2d Dep't August 3, 2022)]

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Real property and the duty to protect.

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 that, as a matter of law, is not inherently dangerous.

Hallahan v. City of New York, NY Slip Op 04791 (2d Dep't August 3, 2022)

Here is the decision.

A defendant is deemed to have constructive notice of a dangerous condition on its property when the condition is visible and apparent, and existed for a sufficient length of time prior to the accident to permit the defendant's employees to discover the condition and remedy it. In moving to dismiss on basis of notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the accident. Mere reference to the defendant's general daily cleaning practices will not suffice.  Here, the affidavit of the defendant's groundskeeper, who described his general daily cleaning practices, failed to establish, prima facie, that the defendant lacked constructive notice of the dangerous condition.

Hegeman v. City of Newburgh, NY Slip Op 04792 (2d Dep't August 3, 2022)

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A summary judgment motion in a slip-and-fall action.

A plaintiff is not required to establish his freedom from comparative negligence to be entitled to summary judgment on the issue of liability. However, the issue of the plaintiff's comparative negligence may be decided on a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.

Ellerin-Diefenbach v. Autumn Sky Dev. Co., Inc., NY Slip Op 04789 (2d Dep't August 3, 2022)

Here is the decision.

Failure to prosecute.

Courts have no authority to dismiss an action for failure to prosecute, whether on the ground of general delay or for failure to serve and file a note of issue, unless there has first been served a 90-day notice, pursuant to CPLR 3216[b][3].

Cooper v. Mt. Sinai Hosp., NY Slip Op 04787 (2d Dep't August 3, 2022)

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Appellate practice.

Generally, an appeal from a final judgment brings up for review any non-final judgment or order which necessarily affects the final judgment, pursuant to CPLR 5501[a][1]. However, since no appeal lies from an order denying reargument, the order denying defendants' motion for leave to reargue their prior motion to dismiss is not brought up for review. Where a judgment is based on the appellant's default, review is limited to matters which were the subject of contest below Thus, the order granting plaintiff's unopposed motion to strike defendants' answer and for leave to enter a default judgment on the issue of liability is not reviewable on the appeal from the judgment.

Brightside Home Improvements, Inc. v. Northeast Home Improvement Servs., NY Slip Op 04785 (2d Dep't August 3, 2022)

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An action to recover on a promissory note.

Plaintiff appeals from an order denying its motion for summary judgment on the complaint. The Appellate Division reverses and grants the motion. Plaintiff established, prima facie, its entitlement to judgment as a matter of law by submitting a copy of the note and defendant's payment history, evincing defendant's obligations under the note and his failure to make a payment in accordance with its terms. The affidavit of plaintiff's recovery supervisor established that plaintiff's business records satisfied the admissibility requirements of CPLR 4518(a). In opposition, defendant failed to raise a triable issue of fact as to any bona fide defense, as his contentions were unsubstantiated and speculative.

Branch Banking & Trust Co. v. Myrthil, NY Slip Op 04784 (2d Dep't August 3, 2022)

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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)

Here is the decision.

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)

Here is the decision.