Res ipsa loquitur.

For the doctrine of res ipsa loquitur to apply, a plaintiff must establish three conditions: the event must be of a kind that ordinarily does not occur in the absence of someone's negligence; it must be caused by an agency or instrumentality within the exclusive control of the defendant; and it must not have been due to any voluntary action or contribution on the part of the plaintiff.  If the plaintiff satisfies the burden of proof on these three elements, the fact-finder may infer negligence. The exclusive control element is not a rigid rule and it may be applied in circumstances when the accident occurred after the instrumentality left the defendant's control, if it is shown that the defendant had exclusive control at the time of the alleged act of negligence. The plaintiff does not have to eliminate all other causes, but, rather, must show that their likelihood is reduced so that the defendants' conduct is more probably the cause. The plaintiff must show that the defendant's control was sufficiently exclusive to fairly rule out some other agency causing the purported defect.  

Bicchetti v. Atlantic Toyota, NY Slip Op 03219 (2d Dep't June 14, 2023)

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Appellate practice.

Plaintiffs abandoned their appeal from the dismissal of their claims for breach of fiduciary duty and unjust enrichment by failing to make any arguments as to those claims in their appellate briefs.

Weis v. Rheem, Bell & Freeman, LLP, NY Slip Op 03297 (1st Dep't June 15, 2023)

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Contract law.

Even if a party has not expressly breached a contract, it may breach the implied duty of good faith where it exercises a contractual right as part of a scheme to deprive the other party of the benefit of its bargain. A plaintiff's breach of the implied covenant claim is not duplicative where it seeks redress for injuries that are separate from the breach of contract claim. 

Barnett v. Berkowitz, NY Slip Op 03286 (1st Dep't June 15, 2023)

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Service of process.

Ordinarily, a process server's affidavit constitutes prima facie evidence that the defendant was validly served. Bare and unsubstantiated denials of receipt of the summons and complaint are insufficient to rebut the presumption of proper service. However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit, and necessitates an evidentiary hearing.

Aikens v. Kouchnerova, NY Slip Op 03218 (2d Dep't June 14, 2023)

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Sanctions for spoliation.

Defendants' motion for sanctions is granted to the extent of ordering an adverse inference instruction for plaintiff's failure to preserve text messages to and from a former co-worker. The lost texts were relevant to contested issues in this action, and plaintiff acted negligently in failing to preserve them when she purportedly broke her phone.

Shamash v. David Bocchi, Inc., NY Slip Op 03213 (1st Dep't June 13, 2023)

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Leave to amend.

A motion for leave to amend the complaint will be denied where the moving papers do not include the proposed amendment showing the changes or additions, pursuant to CPLR 3025[b].

Wiltz v. New York Univ., NY Slip Op 03215 (1st Dep't June 13, 2023)

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Appellate practice.

The appeal is dismissed because plaintiff failed to file a proper appellate record. Plaintiff failed to include the underlying motion to dismiss, her opposition to that motion, and the exhibits annexed to the parties' submissions, pursuant to CPLR 5526. Without the benefit of a proper record, the Appellate Division cannot review this matter, as the trial court granted the motion to dismiss based in part on the documentary evidence annexed to the parties' submissions.

Woodward v. City of New York, NY Slip Op 03216 (1st Dep't June 13, 2023)

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Correcting a mistake in an order or judgment.

A trial court has discretion to correct an order or judgment which contains a mistake, defect, or irregularity that does not affect a substantial right of a party, pursuant to CPLR 5019[a].

Fisch v. Wells Fargo Bank, N.A., NY Slip Op 03001 (2d Dep't June 7, 2023)

Here is the decision.

Pleading the pandemic as an affirmative defense.

In this loan default action, defendants plead, as an affirmative defense, that plaintiff's damages result from circumstances beyond defendants' control, and, therefore, are barred by the doctrines of impossibility and frustration of purpose. Defendants also plead a counterclaim which asks the court to declare that defendants' obligations to plaintiff pursuant to the loans are discharged because the sharp reduction in revenue that taxicabs suffered due to plummeting ridership during the COVID-19 pandemic excuses defendants' contractual obligations. However, defendants do not show that the financial hardship they suffered is tantamount to the destruction of the subject matter" of the loan agreements or that their reasons for performing under the loan agreements ceased to exist, such that the doctrines of impossibility or frustration of purpose would apply. 

What is more, defendants' invocation of the pandemic as grounds for application of the doctrines of frustration of purpose or impossibility is an approach that has been squarely rejected, even where, because of the pandemic, the business of the party seeking application of such doctrines was temporarily suspended. 

Pentagon Fed. Credit Union v. Popovic, NY Slip Op 03076 (1st Dep't June 8, 2023)

Here is the decision.

Extending time to serve process.

 CPLR 306-b provides, in pertinent part, that "[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action . . . . If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service." The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests as presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or the lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of the plaintiff's request for the extension of time, and prejudice to the defendant. No single factor is determinative. 

Deutsche Bank Trust Co. Ams., v. Lottihall, NY Slip Op 02999 (2d Dep't June 7, 2023)

Here is the decision.

Dismissal of a complaint as abandoned.

CPLR 3215(c) provides that if a plaintiff fails to take proceedings for the entry of judgment within one year after the defendant's 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. In order to avoid dismissal pursuant to the statute, it is not necessary for the plaintiff actually to obtain a default judgment within one year. The plaintiff is not even required to specifically seek a default judgment within the year. As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint pursuant to CPLR 3215(c). The statutory language is not discretionary, but mandatory, inasmuch as courts "shall" dismiss claims for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned. The one exception to the otherwise mandatory language of CPLR 3215(c) is that the failure to timely seek a default on an unanswered complaint or counterclaim may be excused if sufficient cause is shown why the complaint should not be dismissed. The Second Department has interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious.   The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the Supreme Court. 

Bank of N.Y. v. Pieloch, NY Slip Op 02996 (2d Dep't June 7, 2023)

Here is the decision.