Dismissal for failure to comply with court-ordered discovery.

The drastic remedy of dismissing a complaint for the plaintiff's failure to comply with court-ordered discovery is warranted where the conduct is shown to be willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse, or (2) the failure to comply with court-ordered discovery over an extended period of time. Here, the willful and contumacious nature of the plaintiffs' conduct may properly be inferred from their repeated failures, without a reasonable excuse, to comply with the defendants' discovery demands, the court's order, and prior so-ordered stipulations. 

Ashfaq v. Ice Cream Depot Corp., NY Slip Op 05674 (2d Dep't October 12, 2022)

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Summary judgment before discovery.

The Appellate Division rejects plaintiff's argument that defendants' motion for summary judgment before discovery is premature. The record shows that the facts concerning plaintiff's dealings with defendants are within plaintiff's knowledge. Therefore, plaintiff does not establish that "facts essential to justify opposition may exist but cannot then be stated," as required for a motion brought under CPLR 3212[f].

 Alpine Custom Floors, Inc. v. Yurcisin, NY Slip Op 05655 (1st Dep't October 11, 2022)

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Venue.

Pursuant to CPLR 504(1), the place of trial of all actions against a county shall be in that county, and, pursuant to CPLR 504(2), the place of trial of all actions against a town shall be in the county in which that town is situated. Venue may be placed in a county other than the county mandated by CPLR 504 upon a showing of special or compelling countervailing circumstances, but, here, the plaintiffs failed to demonstrate any such circumstances.

N.C. v. Ifezulumbria, NY Slip Op 05515 (2d Dep't October 5, 2022)

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The doctrine of in loco parentis.

Because a school acts in place of the parent with respect to its minor students, a school district owes a special duty to the students themselves. Schools are under a duty to adequately supervise the students in their charge and they will be liable for foreseeable injuries proximately related to the absence of adequate supervision. However, schools are not insurers of the safety of their students, and the duty they owe to their students derives from their physical custody and control over the students. Therefore, the school's custodial duty ceases once the student has passed out of its orbit of authority and the parent can reassume control over the child's protection. However, the school's duty continues and is breached if the student is released without further supervision into a forseeably hazardous setting it had a hand in creating.

Boyle v. Brewster Cent. Sch. Dist., NY Slip Op 05514 (2d Dep't October 5, 2022)

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Appellate practice.

The order is appealable as of right under CPLR 5701(a)(3), as plaintiff properly made a motion on notice to vacate Supreme Court's sua sponte order under CPLR 2221(a). 

215 W. 84th St. Owner LLC v. Ozsu, NY Slip Op 05495 (1st Dep't October 4, 2022)

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Staying an action.

Pursuant to CPLR 2201, Supreme Court may stay an action pending before it "upon such terms as may be just," and the court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, duplication of proof, and the waste of judicial resources. Here, the first-in-time holdover proceeding involves the same parties and both proceedings require the resolution of questions arising from defendant's occupancy of the apartment. A stay is appropriate. 

215 W. 84th St. Owner LLC v. Ozsu, NY Slip Op 05495 (1st Dep't October 4, 2022)

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Court holiday.

Appellate practice.

A defendant with a right to contribution from a co-defendant has standing to appeal dismissal of his cross-claim. Here, the cross-claim is reinstated, and the cross-claimant can seek recovery for his co-defendants' proportionate fault for plaintiff's injuries. 

Ortiz v. Maxon, NY Slip Op 05375 (1st Dep't September 29, 2022)

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A breach of contract claim.

Defendant fails to establish, as a matter of law, that plaintiff waived his right to be compensated in accordance with the terms of a bonus provision in the parties' employment agreement. The evidence it submitted to show that plaintiff had accepted a bonus amount lower than that to which he was entitled does not demonstrate a clear manifestation of intent to relinquish the contractual right. Defendant's motion to dismiss is denied.

Ramirez v. Moab Capital Parners, LLC, NY Slip Op 05383 (1st Dep't September 29, 2022)

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Respondeat superior and vicarious liability claims.

Directors and officers are not subject to personal liability for the torts of corporation employees merely as a result of their holding corporate office.

Schwartz v. Mount Sinai Hosp., NY Slip Op 05384 (1st Dep't September 29, 2022)

Here is the decision.

New York State and City Human Rights Law employment discrimination and retaliation claims.

The discrimination claims fail because the same supervisor who hired plaintiff in December 2015 fired him by early March 2016, undercutting any notion that plaintiff was mistreated due to his race, color, or national origin. The hostile work environment claims fail, because plaintiff withdrew the claims at his deposition after testifying that he did not consider race, color, or national origin when complaining that a coworker was hostile to him. The record also demonstrates nothing more than petty slights and trivial inconveniences arising from their arguments about the quality of his work and his use of his coworker's workstation and tools.

The retaliation claims fail, as plaintiff testified that no supervisor, coworker, or human resources personnel knew of an unrelated lawsuit he filed against his undergraduate institution, and he otherwise merely theorized that unnamed military or government agents, who were purportedly stalking him, bribed his supervisor to fire him or informed a coworker of the other action. 

The discrimination and retaliation claims also fail because plaintiff's disagreement with defendants' assessment of his performance is insufficient to raise an issue of fact as to whether poor performance was a pretext for unlawful conduct.

Weir v. Montefiore Med. Ctr., NY Slip Op 05301 (1st Dep't September 27, 2022)

Here is the decision.