Discovery.

The Appellate Division reversed the motion court and granted the parties' cross motions to extend the time to file the note of issue and defendant's motion for leave to complete discovery and depose plaintiff's expert. Absent the extension, the parties could neither move forward to trial nor complete the discovery necessary to move forward to trial, thereby frustrating the strong public policy favoring open disclosure to allow the parties to adequately prepare, pursuant to CPLR 3101[a.]. In addition, defendant demonstrated a need for additional discovery and to depose plaintiff's expert, who was hired to calculate damages in this commercial case.

361 Broadway Assoc. Holdings, LLC v. Foundations Group I, Inc., NY Slip Op 06571 (1st Dep't November 17, 2022)

Here is the decision.

Sanctions for spoliation.

Pursuant to CPLR 3126, a party that seeks sanctions for negligent or intentional spoliation of evidence must show that the party in control of the evidence was obliged to preserve it, that the evidence was destroyed with a culpable state of mind, and that the evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense. Sttriking a pleading is such a drastic sanction that, in the absence of willful or contumacious conduct, the court must consider the prejudice that resulted from the spoliation.

Aldo v. City of New York, NY Slip Op 06454 (2d Dep't November 16, 2022)

Here is the decision.

Appellate practice.

In this personal injury action, plaintiffs' motion for summary judgment on the issue of liability was granted. Defendants appealed, and the motion court's order was affirmed. Plaintiffs' request for certain affirmative relief was not properly before the Appellate Division, since plaintiffs did not cross-appeal from the order. 

Ahmed v. Fernando, NY Slip Op 06453 (2d Dep't November 16, 2022)

Here is the decision.

An age discrimination claim.

Defendant established its entitlement to summary judgment dismissing the complaint, as it articulated a legitimate, nondiscriminatory reason for firing plaintiff from his employment as a cleaner, namely, plaintiff's unsatisfactory work performance and his failure to improve despite multiple warning letters. Defendant submitted tenant complaints regarding the uncleanliness of the bathrooms and the warning letters it issued to plaintiff about his poor performance,  supporting its claim that plaintiff was terminated not because of his age, but because of his failure to adequately perform his duties. As further evidence that plaintiff was not fired because of his age, defendant showed that it did not fill plaintiff's position after he was terminated but outsourced his job duties to a third-party cleaning service. 

In opposition, plaintiff presented no evidence tending to show that the tenant complaints or the warning letters were inaccurate, much less designed to supply a pretext for age discrimination. Nor does plaintiff show how defendant's failure to give him vacation wages before his vacation was to begin supports a finding of pretext under the circumstances. In addition, plaintiff's assertion that defendant failed to sufficiently warn him about his unsatisfactory job performance is undermined by his own testimony that he saw the letter that suspended him for three days based on tenant complaints regarding his job performance.

The two isolated comments made by plaintiff's supervisor about his intent to retire were merely stray remarks that, without more, do not constitute evidence of discrimination. Even if these remarks suggested bias, defendant established that the supervisor was not involved in the decision to terminate plaintiff's employment, and had no power to hire, fire, or discipline him.

Ahmed v. West 46th St. Mgt., LLC, NY Slip Op 06417 (1st Dep't November 15, 2022)

Here is the decision.

Personal jurisdiction over an out-of-state defendant.

Pursuant to CPLR 302(a)(3), a plaintiff's economic injury in New York is insufficient to confer jurisdiction. The situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred.

HH Trinity Apex Invs. LLC v. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., NY Slip Op 06321 (1st Dep't November 10, 2022)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.