A motion for an extension of time to effect service.

Pursuant to CPLR 306-b, a court, in the exercise of discretion, may grant the motion for good cause shown or in the interest of justice. Here, there was no good cause shown, since the plaintiff was unable to produce the process server to testify at the hearing, and thus failed to demonstrate that it had made reasonably diligent efforts to effect service. Further, in view of the plaintiff's extensive delay in seeking the extension, it is not warranted in the interest of justice.

BAC Home Loans Servicing, L.P. v. Tessler, NY Slip Op 04943 (2d Dep't August 17, 2022)

Here is the decision.

A cause of action for negligence.

In a negligence action, a plaintiff moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff, and that the defendant's negligence was a proximate cause of the alleged injuries. The plaintiff does not bear the burden of establishing the absence of his own comparative fault.

E.B. v. Gonzalez, NY Slip Op 04942 (2d Dep't August 17, 2022)

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Appellate practice.

The appellant may not raise arguments concerning an order that was the subject of an earlier appeal that was dismissed.

Genger v. Genger, NY Slip Op 04940 (1st Dep't August 16, 2022)

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Entry of judgment after a default.

Pursuant to CPLR 3215(c), "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default," the court will not enter judgment and will dismiss the complaint as abandoned. The plaintiff does not have to actually obtain a default judgment within one year, or even seek it, at least not specifically. As long as the plaintiff initiates proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint.

Deutsche Bank Natl. Trust Co. v. Khalil, NY Slip Op 04898 (2d Dep't August 10, 2022)

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Appellate practice.

The defendants failed to submit papers to the Supreme Court in opposition to the plaintiff's application for an award of attorneys' fees and disbursements, and the application was granted on default. Since the order appealed from was entered upon the defendants' default, the appeal must be dismissed , pursuant to CPLR 5511.

Cortazar v. Cortazar, NY Slip Op 04897 (2d Dep't August 10, 2022)

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The doctrine of danger invites rescue.

The doctrine applies only if there is evidence that the victim to be rescued is in imminent and life-threatening peril. Where the doctrine is applicable, it is a foreseeable risk that a plaintiff would attempt to rescue the victim of the defendant's negligence, to the extent that the negligence is not wanton.

Corpin v. Derive Tech, LLC, NY Slip Op 04896 (2d Dep't August 10, 2022)

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Agreements to arbitrate.

Arbitration is a matter of contract, and arbitration clauses are subject to ordinary principles of contract interpretation. Therefore, they must be enforced according to their terms. However, the fact there is an agreement to arbitrate is not a defense to a plenary action, and it is not a basis for a motion to dismiss.

Chalom v. Areivim USA, NY Slip Op 04895 (2d Dep't August 10, 2022)

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Defaulting defendants.

A defaulting defendant admits all traversable allegations in the complaint and the basic allegation of liability, but does not admit the plaintiff's conclusion as to damages. The sole issue to be determined at the inquest is the extent of damages sustained by the plaintiff.

Cerullo, LLC v. John D. Rocco Sales Co., LLC, NY Slip Op 04894 (2d Dep't August 10, 2022)

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A defaulting defendant is entitled to present testimony and evidence and cross-examine the plaintiff's witnesses at the inquest on damaages.

Brasil-Puello v. Weisman, NY Slip Op 04893 (2d Dep't August 10, 2022)

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Summary judgment in a slip-and-fall action.

The movant-defendant has the initial burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had actual or constructive notice of it. Here, in support of its motion, the defendant submitted transcripts of the deposition testimony of the plaintiff and of an employee of the defendant. The plaintiff testified that she slipped on something slimy and soapy on the floor of the restroom. The defendant's employee testified that she had recently mopped that floor with a diluted cleaning solution. Therefore, the defendant failed to establish, prima facie, that it did not create the alleged hazardous condition. Since the defendant did not establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact.

Bianchini v. Genting N.Y., LLC, NY Slip Op 04891 (2d Dep't August 10, 2022)

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A supplemental bill of particulars.

Pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing continuing special damages and disabilities, without leave of court, at any time, but not less than 30 days prior to trial, if it alleges no new cause of action or claims no new injury.'

Here, the second supplemental bill of particulars did not allege new injuries, but set forth the continuing consequences of the same injuries which were previously alleged. In addition, since the supplemental bill  was served more than 30 days prior to trial, leave of court was not required. 

Ali v. JS 39, LLC, NY Slip Op 04889 (2d Dep't August 10, 2022)

Here is the decision.

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.