Photograph evidence in a slip-and-fall action.

In considering defendant's summary judgment motion, the court properly disregarded the Google Maps photos that defendant submitted in its reply papers. The photos purportedly were taken months before the accident. and there was no affidavit by a person with knowledge of the photos' origins, or knowledge of whether they fairly and accurately portrayed the condition of the sidewalk at the time of accident.

Mercedes v. 680 SN LLC, NY Slip Op 06323 (1st Dep't November 10, 2022)

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Appellate practice.

The doctrine of the law of the case does not bind an appellate court to a trial court ruling.

Morgan Stanley Private Bank, N.A. v. Ceccarelli, NY Slip Op 06324 (1st Dep't November 10, 2022)

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Service of process.

CPLR 308(2) authorizes "[p]ersonal service upon a natural person . . . by delivering the summons within the state to a person of suitable age and discretion at the actual place of business . . . of the person to be served and . . . by mailing the summons by first class mail to the person to be served at his or her actual place of business." CPLR 308(2) provides that "proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later." The failure to file timely proof of service is not a jurisdictional defect, but, instead, is a procedural irregularity that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004.

Chunyin Li v. Joffe, NY Slip Op 06227 (2d Dep't November 9, 2022)

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Newly discovered evidence.

In arguing for vacatur of the order, defendant cannot rely on New York City Council resolutions and the Administrative Code as potentially newly discovered evidence. These legislative materials are matters of public record, and, as such, they are not considered new evidence which could not have been discovered with due diligence. 

NYCTL 1998-2 Trust v. Bethelite Community Baptist Church, NY Slip Op 06325 (1st Dep't November 10, 2022)

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Court holiday.

Appellate practice.

The Supreme Court properly characterized the plaintiff's motion, denominated as one to vacate an order, as seeking leave to reargue its opposition to the defendant's prior motion. Because no appeal lies from an order denying reargument, the appeal must be dismissed.

Bank of Am., N.A. v. Davis, NY Slip Op 06226 (2d Dep't November 9, 2022)

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A petition to annul a City agency's determination.

The failure to set forth an adequate statement of the factual basis for the determination forecloses the possibility of fair judicial review and requires that the matter be remanded to the agency.

Matter of Reynolds v. New York City Fire Pension Fund, NY Slip Op 06330 (1st Dep't November 10, 2022)

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The availability of injunctive relief.

Where a plaintiff's substantive claim is dismissed, the cause of action for injunctive relief has no legal basis, and will be dismissed.

300 Wadsworth LLC v. New York State Div. of Hous. & Community Renewal, NY Slip Op 06311 (1st Dep't November 10, 2022)

Here is the decision.

A claim for breach of contact.

The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach.  Here, in support of their motion for summary judgment dismissing the claim, the defendants submitted transcripts of the parties' deposition testimony, which provided differing accounts regarding the existence of an agreement, and emails which had been exchanged between the parties and their attorneys. The defendants' evidence failed to eliminate triable issues of fact as to whether the parties had agreed upon the agreement's major terms and whether the parties began to perform the agreement. As such, they failed to establish, prima facie, that the parties had not reached an agreement. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, their motion is denied wihout considering the sufficiency of the plaintiffs' opposition.

223 Sam, LLC v. 223 15th St., LLC, NY Slip Op 06224 (2d Dep't November 9, 2022)

Here is the decision.

Proper service.

The process server's affidavit established, prima facie, that the defendant was properly served, by three attempts at personal service, followed by "nail and mail" service, pursuant to CPLR 308[4].  In addition, in a stipulation to extend her time to answer, the defendant stated that she had been served with the summons and complaint, and that she would not assert improper service of process or lack of personal jurisdiction as defenses. There is no need for a traverse hearing. 

Lynx Asset Servs., LLC v. Nestor, NY Slip Op 06170 (1st Dep't November 3, 2022)

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Appellate practice.

Pursuant to CPLR 5701(a)(3), there is an appeal as of right from an order refusing to vacate or modify a prior order if the prior order would have been appealable as of right, pursuant to CPLR 5701(a)(2). Here, the prior order would not have been appealable as of right because it was not a substantive ruling, but merely the denial of defendants' request for an extension of its time to post a bond.

Largo 613 Baltic St. Partners LLC v,  Stern, NY Slip Op 06168 (1st Dep't November 3 , 2022)

Here is the decision.