An easement by prescription.

In order to acquire the easement, it must be shown that its use was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period of 10 years. Where there is clear and convincing evidence that use of the easement was open, notorious, continuous, and undisputed, it is presumed that the use was hostile. The burden then shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive. Permission may be inferred where the relationship between the dominant and servient estates evinced neighborly cooperation and accommodation.

Aboulissan v. Kingsland 79, LLC, NY Slip Op 07426 (2d Dep't December 28, 2022)

Here is the decision.

A claim for aiding and abetting a breach of fiduciary duty.

An essential element of the cause of action is actual knowledge of the breach. To the extent that the complaint alleges constructive knowledge, it is insufficient and will be dismissed.

Continental Indus. Group, Inc. v .Ustuntas, NY Slip Op 07294 (1st Dep't December 22, 2022)

Here is the decision.

Court holiday.

An untimely filing.

The City's submission of its answer two days after the stipulated deadline does not require entry of default against it. The City demonstrated its intent to oppose the petition on the merits by requesting petitioner's agreement to the extension and subsequently filing an answer, and petitioner does not argue that the brief delay prejudiced him.

Matter of Kuza v. New York City Dept. of Fin., NY Slip Op 07297 (1st Dep't December 22, 2022)

Here is the decision.

The doctrine of equitable estoppel.

Invocation of the doctrine requires a showing of deception, fraud, or misrepresentation. The plaintiff cannot invoke the doctrine to prevent the defendant from asserting a statute of limitations defense based on an oral promise to pay the funds at issue in this breach of contract action.

Angeli v. Barket, NY Slip Op 07213 (2d Dep't December 21 2022)

Here is the decision.

An alleged breach of fiduciary duty.

There is no fiduciary relationship where the contracting parties were engaged in an arms' length transaction, as it is a purely business relationship.

National Auditing Servs. & Consulting, LLC v. 511 Prop., LLC, NY Slip Op 07300 (1st Dep't December 22, 2022)

Here is the decision.

Sua sponte dismissal.

Plaintiff's motion to vacate the court's sua sponte dismissal is granted. The motion appended an agreement between the parties to vacate the dismissal. In addition, plaintiff's counsel explained that he failed to file the discovery stipulation as the motion court directed in its notices as he expected the outstanding discovery issues to be handled at an upcoming conference. The outstanding issues to be raised at the conference related to discovery was that owed by defendants, not plaintiff. Finally, the record shows no evidence that plaintiff was dilatory at any time during discovery. 

Avagyan v. 100 W. 74th St., LLC, NY Slip Op 07291 (1st Dep't December 22, 2022)

Here is the decision.

Appellate practice.

In reviewing a determination made after a nonjury trial, the Appellate Division's power is as broad as that of the trial court. As a result, the Appellate Division may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing and hearing the witnesses.

21st Mtge. Corp. v. Nodumehlezi, NY Slip Op 07212 (2d Dep't December 21, 2022)

Here is the decision.

Court holiday.