A cause of action for negligent infliction of emotional distress.

The complaint must be premised upon the breach of a duty owed to the plaintiff which either unreasonably endangers the plaintiff's physical safety or causes the plaintiff to fear for his own safety. Here, the plaintiff seeks to hold the defendant vicariously liable its employee's conduct, and the complaint only alleges intentional conduct by the employee. Therefore, there is no basis for a cause of action sounding in negligence. The claim is dismissed.  

Aklipi v. American Med. Alert Corp., NY Slip Op 02483 (2d Dep't May 10, 2023)

Here is the decision.

Discovery motions.

Pursuant to 22 NYCRR 202.7(a)(2), a motion relating to discovery must be accompanied by an affirmation from moving counsel attesting that he has conferred with opposing counsel in a good faith effort to resolve the issues raised by the motion. The affirmation must specify the time, place, and nature of the conference, the issues discussed, and the result, or must state good cause why no such conference was held. Here, the affirmation referred to letter communications between the parties as well as conferences held with the Supreme Court, thereby evincing a diligent effort to resolve the dispute.

Adler v. Oxford Health Plans (NY), Inc., NY Slip Op 02482 (2d Dep't May 10, 2023)

Here is the decision.

Contract law.

As a general principle, only a non-party to a contract can be liable for tortious interference. At issue in the line of cases applying this principle is either a bilateral contract or a contract under which all defendants have the same obligations. The principle does not apply if the inducing party is subject to contractual duties that are different from those it allegedly encouraged another contracting party to breach. When breaching and inducing parties have different rights and duties, the plaintiff may plead tortious interference in order to make it whole.

Arena Invs., L.P. v. DCK Worldwide Holding Inc., NY Slip Op 02476 (1st Dep't May 9, 2023)

Here is the decision.

Settlement agreements.

The court found that the parties entered into a binding settlement agreement at the conclusion of mediation, the terms of which were embodied in an e-mail agreement. The e-mail correspondence is sufficient to embody a settlement agreement since it was authentic and sets forth all material terms. The settlement agreement specifically states that it is "subject to a formalized Settlement Agreement." In analyzing such language, courts must determine whether the parties have merely come to a preliminary agreement to agree, which is not enforceable, or a binding agreement, by determining whether there has been an explicit reservation that there would be no contract until the full formal document is completed and executed.

The parties' use of the phrase "subject to," standing alone, does not amount to an express reservation of the right not to be bound or a condition precedent to the formation of a binding contract. Instead,  the "subject to" language indicates the parties' expectation that they would come to a final agreement as a mere formality, not as a condition precedent to a binding settlement agreement. The parties' subsequent actions - including their correspondence with each other, their co-counsel, and the court - all indicate their respective understandings that the parties had come to a final settlement agreement resolving the related action in federal court.

Go N.Y. Tours, Inc. v. Tour Cent. Park Inc., NY Slip Op 02457 (1st Dep't May 9, 2023)

Here is the decision.

Vacating a default.

In order to vacate a default in appearing at a conference, the defaulting party must demonstrate both a reasonable excuse and a potentially meritorious cause of action or defense to the action. The determination of whether an excuse is reasonable lies within the sound discretion of the trial court. A court has discretion to accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation. However, law office failure should not be excused where the default results not from an isolated, inadvertent mistake, but from repeated neglect, or where the allegation of law office failure is vague, conclusory, and unsubstantiated.

Beach 28 RE, LLC v. Somra, N.Y. Slip Op 02295 (2d Dep't May 3 2023)

Here is the decision.

Disclosure of settlement agreements.

After a gas explosion, New York City and Con Ed, among other entities, were named as defendants in a number of actions. The City and Con Ed also asserted various claims against each other for property damage, indemnification, and contribution. At a court-ordered mediation, the City and Con Ed reached an agreement on the allocation of liability between them, and plaintiff seeks disclosure of their agreement.

When a nonsettling party seeks disclosure of the terms of a settlement agreement, the terms of the agreement must be material and necessary to the non-settling party's case.  After in camera review of the agreement, disclosure of its terms is prohibited. The agreement is not improper, as it does not demonstrate collusion or undermine the adversarial process because plaintiff may pursue discovery from both defendants.

Matter of Barrios v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 02378 (1st Dep't May 4, 2023)

Here is the decision.

Dismissed as abandoned.

CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." The statutory language is strictly construed, as it is mandatory that the court dismiss such claims. Where an action is subject to a mandatory settlement conference, pursuant to CPLR 3408, the one-year deadline is tolled while settlement conferences are pending.

Bank of N.Y. Mellon v. Toscano, NY Slip Op 02294 (2d Dep't May 3, 2023)

Here is the decision.

Real property and liability.

Liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property, and any one of these elements gives rise to a duty of care. However, liability can also be imposed upon a party that creates a dangerous or defective condition.

Abramson v. Janowski's Hamburgers, Inc., NY Slip Op 02293 (2d Dep't May 3, 2023)

Here is the decision.

Equitable estoppel.

Equitable estoppel is an extraordinary remedy which applies where a party is prevented from filing an action within the statute of limitation due to his reasonable reliance on deception, fraud, or misrepresentations by the other party. Plaintiff has the burden of establishing that defendant engaged in affirmative misconduct that prevented it from timely asserting its claims. Here, the amended complaint alleges that defendant refused to negotiate towards resolution of the parties' dispute. However, there is no evidence or even an allegation that defendant lulled plaintiff into inaction in order to allow the limitations period to lapse.

MRE Tech. Solutions LLC v. Smiths Detection, Inc., NY Slip Op 02387 (1st Dep't May 4, 2023)

Here is the decision.

Amending a complaint.

Plaintiff is entitled to amend his complaint, pursuant to CPLR 3025(b), as the claims are not devoid of merit or palpably insufficient. Although the proposed amendment is verified only by counsel, the existence of the relevant contracts is within counsel's knowledge since the contracts are attached as exhibits.

Smith v. Founders Entertainment LLC, NY Slip Op 02291 (1st Dep't May 2, 2023)

Here is the decision.

Common-law indemnification.

Common-law indemnification is not available unless the petitioner has been held to be vicariously liable without proof of any negligence or actual supervision on its own part.

176 W. 87th St. Owners Corp. v. Guercio, NY Slip Op 02277 (1st Dep't May 2, 2023)

Here is the decision.