The plaintiffs' proposed cause of action to recover damages for wrongful death is barred by the two-year statute of limitations, pursuant to EPTL 5-4.1. The limitations period is not tolled during the pendency of the application for letters of administration.
Byner v. Murray-Taylor, NY Slip Op 05201 (2d Dep't September 21, 2022)
Where a defendant seeking to vacate a default raises a jurisdictional objection, pursuant to CPLR 5015(a)(4), the court must resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default. The plainttiff has the burden of proving that the court has personal jurisdiction over the defendant.
Deutsche Bank Natl. Trust Co. v. Fernandez, NY Slip Op 05150 (2d Dep't September 14, 2022)
In this action to recover damages for breach of contract, the Supreme Court did not explain how it calculated the damages award to the plaintiff, and it is not apparent from the record. Therefore, the Appellate Division remits the matter to the Supreme Court to set forth its calculations and the specific evidence it relied upon in determining the damages award. The appeal is held in abeyance in the interim, and the Supreme Court shall file its report with all convenient speed.
C.D.S. Home Improvement Corp. v. Adegoke, NY Slip Op 05149 (2d Dep't September 14, 2022)
Res ipsa loquitur is an evidentiary doctrine that, under appropriate circumstances, may be invoked to allow the factfinder to infer negligence from the mere happening of an event. The doctrine follows from the understanding that some events ordinarily do not occur in the absence of negligence. A plaintiff must establish that the injury was caused by an agent or instrumentality within the defendant's exclusive control, and that no act or negligence on the plaintiff's part contributed to the happening of the event.
Berlich v. Maimonides Med. Ctr., NY Slip Op 05148 (2d Dep't September 14, 2022)
The doctrine applies only where the issue is the absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues. Here, the infant plaintiff was injured while using a trampoline in the yard of the defendants' private residence, not in a designated athletic or recreational venue, and the defendants did not actively sponsor or promote the activity. As such, the doctrine is not a bar to liability.
Bell-Moran v. Pena, NY Slip Op 05147 (2d Dep't September 14, 2022)
The Appellate Division may consider an argument raised for the first time on appeal if the legal issue is determinative and the record on appeal is sufficient to permit review.
Rosa v. 47 E. 34th St. (NY), L.P., NY Slip Op 05144 (September 13, 2022)
Because suits against New York State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning the suit must be strictly construed. Pursuant to Court of Claims Act § 11(b), a plaintiff must plead (1) the nature of the claim; (2) the time when the claim arose; (3) the place where it arose; and (4) the damage or injuries alleged to have been sustained. The failure to satisfy any of these conditions is a jurisdictional defect which may not be cured by amendment.
Correa v. State of New York, NY Slip Op 05074 (2d Dep't August 31, 2022)
The defendant's contention that the plaintiff obtained the clerk's judgment by making false allegations in the complaint amounts to an allegation of intrinsic fraud. A defendant seeking to vacate a default based on intrinsic fraud, pursuant to CPLR 5015(a)(3), must establish a reasonable excuse for the default and a potentially meritorious defense to the action. Here, the defendant failed to establish a reasonable excuse for its default. Since the defendant failed to establish a reasonable excuse for the default, it is unnecessary to consider whether the defendant presented a potentially meritorious defense to the action.
Chase Bank USA, N.A. v. Laroche, NY Slip Op 05073 (2d Dep't August 31, 2022)
In order to succeed on a motion to vacate an order or judgment on the ground of newly discovered evidence, pursuant to CPLR 5015(a)(2), the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence and that the newly discovered evidence probably would have produced a different result.
Chase Bank USA, N.A. v. Laroche, NY Slip Op 05073 (2d Dep't August 31, 2022)
Thre is no appeal from a judgment entered upon the default of the appealing party, pursuant to CPLR 5511. However, an appeal from a judgment entered upon the default of the appealing party brings up for review those matters which were the subject of contest before the Supreme Court. As a general rule, the Appellate Division will not consider issues raised on a subsequent appeal that were raised, or could have been raised, on an earlier appeal which was dismissed for lack of prosecution, although it has inherent jurisdiction to do so.
275 Clermont, LLC v. Johnson, NY Slip Op 05070 (2d Dep't August 31, 2022)
The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent, and the best evidence the contracting parties' intent is what they say in their writing. The parties' words and phrases must, as in all cases involving contract interpretation, be given their plain meaning. Where a contract was negotiated between sophisticated, counseled business people negotiating at arm's length, courts should be especially reluctant to interpret an agreement as impliedly stating something which the parties specifically did not include. Where the contract's terms are clear and unambiguous, the parties' intent must be found within the contract's four corners, giving a practical interpretation to the language employed and reading the contract as a whole. Where a contract fails to specify the time for performance, the law will imply a reasonable time.
255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 05068 (2d Dep't August 31, 2022)