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 of 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)

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Appellate practice.

To the extent that on its cross-claim for indemnification defendant raises arguments for the first time on appeal, they are not properly before the Appellate Division.

Martinez v. Kingston 541, LLC, NY Slip Op 06638 (1st Dep't November 22, 2022)

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Failure to plead an affirmative defense.

The plaintiff's contention that leave to amend was properly denied because the defendant waived the defense of lack of standing by failing to assert that defense in its answer or in a pre-answer motion to dismiss the complaint is without merit. A waiver that results from a failure to affirmatively plead a defense in accordance with CPLR 3018(b), including a waiver of the defense of standing, may be retracted through subsequent amendment to the pleadings.

Baharrie v. MRAG Dev., LLC, NY Slip Op 06683 (2d Dep't November 23, 2022)

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December 7, 1941

Waiver of attorney-client privilege.

Deposition testimony by the CEO and Chairman of defendants' corporate parent, Rolta India, waived defendants' attorney-client privilege as to communications had with various counsel representing them in New York courts and in India. The CEO's testimony that defendants did not comply with post-judgment orders calling for a turnover of assets to a receiver because the turnover and receivership orders had yet to be domesticated in India in accordance with Indian law affirmatively put the subject matter of their privileged communications in litigation.  The CEO testified that defendants' counsel in India advised noncompliance with the post-judgment orders pending domestication of such orders in India, and that defendants' U.S. counsel would yield to the advice of its Indian counsel on the matter. Therefore, invasion of the privilege was required for plaintiffs to adequately contest the validity of defendants' defense in failing to comply with the turnover and receivership orders, especially since contempt proceedings had already been brought against the president of Rolta India's primary subsidiary and contempt proceedings were in the process of being commenced against other principals.

Pala Assets Holding Ltd. v. Rolta, LLC, NY Slip Op 06642 (1st Dep't November 22, 2022)

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Contractual indemnification.

A contract that provides for indemnification will be enforced as long as the intent to assume such a role is sufficiently clear and unambiguous. A court may not interpret a contracted indemnification provision in a manner that would render it meaningless. Therefore, when the intent is clear, an indemnification agreement will be enforced even if it provides indemnity for one's own or a third party's negligence.

Alicea v. Medjugorje Realty, LLC, NY Slip Op 06455 (2d Dep't November 16, 2022)

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Punitive damages.

Even where there is gross negligence, punitive damages are awarded only in singularly rare cases such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public.

Arana v. A.O. Smith Water Prods. Co., NY Slip Op 06542 (1st Dep't November 17, 2022)

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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)

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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)

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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)

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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)

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