Appellate practice.

In this action to recover damages for personal injuries, the defendant appeals from an order that granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability. To the extent that the parties raise arguments regarding the remaining branch of the plaintiff's motion which was for summary judgment dismissing the defendant's third affirmative defense, alleging comparative negligence, that branch of the motion was not addressed by the Supreme Court and, therefore, remains pending and undecided.

Zai Guang Chen v. Tak Yung Cheng, NY Slip Op 06159 (2d Dep't November 2, 2022)

Here is the decision.

An action to recover damages for a personal injury.

A general awareness that a dangerous condition might be present is legally insufficient to constitute notice of the particular condition that caused the plaintiff's accident. 

Jiminez v. PR Grand Hotel Owner Co., LLC, NY Slip Op 06167 (1st Dep't November 3, 2022)

Here is the decision.

Prevailing in an Article 78 proceeding.

During the pendency of this proceeding, which was based on a Freedom of Information Law (FOIL) request, the respondents disclosed, with limited redactions, the records that the petitioner sought. The fact that the records were disclosed voluntarily is irrelevant to the issue of whether the petitioner substantially prevailed. Therefore, the petitioner is entitled to attorneys' fees and costs.

Matter of Jaskaran v. City of New York, NY Slip Op 06166 (1st Dep't November 3, 2022)

Here is the decision.

Appellate practice.

It is the appellant's obligation to assemble a proper record on appeal. Here, the appellant did not comply with the Appellate Division's order which directed the submission of a replacement record containing certain materials. The appeal is dismissed, with costs.

Chery v. Simon, NY Slip Op 06104 (2d Dep't November 2, 2022)

Here is the decision.

A motion for spoliation sanctions.

A defendant's negligence in failing to maintain records may constitute a culpable state of mind with respect to spoliation.

Domingo v. 541 Operating Corp., NY Slip Op 06162 (1st Dep't November 3, 2022)

Here is the decision.

Appellate practice.

The appeal from the order must be dismissed, as no appeal lies from an order denying reargument.

Castillo v. Charles, NY Slip Op 06103 (2d Dep't November 2, 2022)

Here is the decision.

Court holiday.

Out-of-state notarizations.

In support of its motion for summary judgment, the plaintiff submitted an affidavit that was notarized outside of New York State and that was not accompanied by a certificate in conformity pursuant to CPLR 2309(c). This is not a fatal defect,  as it may be corrected nunc pro tunc, or pursuant to CPLR 2001, which permits trial courts to disregard mistakes, omissions, defects, or irregularities at any time during an action where a substantial right of a party is not prejudiced. 

American Express Natl. Bank v. Hoffman, NY Slip Op 06779 (2d Dep't November 30, 2022)

Here is the decision.

Legal malpractice.

Recovery for legal malpractice is limited to pecuniary damages.

Broomes v. Legal Aid Socy. of N.Y. City, Inc., NY Slip 06101 (2d Dep't Novembee 2, 2022)

Here is the decision.

A motion to vacate a default.

Respondent failed to demonstrate a reasonable excuse for its default, pursuant to CPLR 5015 [a] [1], as it did not submit proof sufficient to support its contention that it was never served with the order to show cause. Petitioner submitted an affidavit of service and documentary evidence establishing that the order to show cause was served by certified mail and delivered to an individual at respondent's address. Respondent did not proffer any evidence controverting this proof of service, but merely submitted self-serving statements. The motion is denied.

Matter of Pizzarotti, LLC v. New York Concrete Washout Sys., Inc., NY Slip Op 06182 (1st Dep't November 3, 2022)

Here is the decision.

Court holiday.