A landowner's duty of care.

A landowner has a duty to maintain its premises in a reasonably safe manner. However, there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. In order to succeed on a summary judgment motion, the defendant must establish that the condition in question was both open and obvious and, as a matter of law, was not inherently dangerous.

Here, in support of its motion, the defendant submitted evidence, including a transcript of the plaintiff's deposition testimony and photographs of the accident site, demonstrating, prima facie, that the condition of the elevated boardwalk was both open and obvious and not inherently dangerous. The plaintiff's testimony established that she was aware of the condition of the boardwalk, including that it was elevated, and that she had ridden her bicycle along the boardwalk, without incident, shortly befoee the accident.

Ferruzzi v. Village of Saltaire, NY Slip Op 04578 (2d Dep't September 13, 2023)

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Discovery-related sanctions.

The Supreme Court has broad discretion in supervising disclosure and resolving discovery disputes. Pursuant to CPLR 3126, a court may impose sanctions where a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed. Although public policy strongly favors that actions be resolved on the merits, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct. The willful or contumacious character of a party's conduct can be inferred when, without a reasonable excuse, there is a repeated failure to respond to demands or to comply with the court's orders.

Ferjuste v. 437 BMW, LLC, NY Slip Op 04577 (2d Dep't September 13, 2023)

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Restrictive covenants.

New York favors free and unencumbered use of real property, and covenants restricting a property's use are strictly construed against those seeking to enforce them.  A restrictive covenant may not be given an interpretation extending beyond the clear meaning of its terms. However, where proved by clear and convincing evidence, the covenant will be enforced pursuant to its clear meaning.

Ezekills Constr., LLC v. Saskas, NY Slip Op 04576 (2d Dep't September 13, 2023)

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Premature motions for summary judgment.

Pursuant to CPLR 3212[f], party who contends that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the movant's knowledge and control. Here, the defendants' professed need to conduct depositions did not warrant denial of summary judgment. Since the defendants already had personal knowledge of the relevant facts, the mere hope or speculation that evidence might be uncovered is insufficient.

Elfe v. Roman, NY Slip Op 04575 (2d Dep't September 13, 2023)

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Indemnification.

Where the contract relates to the construction of a building, a provision purporting to indemnify or hold harmless the promisee against liability for bodily injury caused by the promisee's negligence is unenforceable, pursuant to General Obligations Law § 5-322.1[1].

Cedillo v. Nautilus Realty Ltd. Partnership, NY Slip Op 04571 (2d Dep't September 13, 2023)

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A time-barred foreclosure action.

The defendant established, prima facie, that this action to foreclose a mortgage was untimely by submitting the complaint in a prior action to foreclose the mortgage, which established that the statute of limitations expired before this action was commenced. 

Deutsche Bank Natl. Trust Co. v. Swinson, NY Slip Op 04573 (2d Dep't September 13, 2023)

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Service of process.

It is axiomatic that a court lacks personal jurisdiction over a defendant when the plaintiff fails to properly effectuate service of process. Service upon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308. There are circumstances in which a defendant may be estopped from challenging the location or propriety of service, such as when the defendant willfully misrepresents his address, or engages in conduct calculated to prevent the plaintiff from learning his actual place of residence. A defendant in a vehicular accident case may be precluded from contesting service at a former address where the defendant failed to fulfill the statutory obligation of timely notifying the Division of Motor Vehicles of an address change.

Castillo-Florez v. Charlecius, NY Slip Op 04570 (2d Dep't September 13, 2023)

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The enforceability of a release.

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. A release that, on its face, is complete, clear, and unambiguous must be enforced according to the plain meaning of its terms. Where the release is unambiguous, a court may not look to extrinsic evidence to determine the parties' intent. 

Rafailova v. Leading Ins. Group Ins. Co., Ltd., (2d Dep't August 30, 2023)

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Granting relief from an order.

CPLR 5015(a)(5) permits a court which rendered an order to relieve a party from the order where there has been a "reversal, modification or vacatur of a prior judgment or order upon which it is based." In addition, a court has the inherent power to grant a motion to vacate its own judgment or order for sufficient reason, in furtherance of justice.

BSD 253, LLC v. Wilmington Sav. Fund Socy., FSB, NY Slip Op 04430 (2d Dep't August 30, 2023) 

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A default in opposing a motion.

The plaintiff commenced this action to cancel and discharge a mortgage on certain real property. After issue was joined, the plaintiff moved for summary judgment on the complaint. The Supreme Court granted the plaintiff's motion upon the defendant's failure to file opposition papers. The defendant thereafter moved for leave to renew the plaintiff's unopposed motion. The court denied the defendant's motion for leave to renew, and the defendant appeals. The defendant's motion for leave to renew was properly denied, as there was no opposition to the plaintiff's motion that could have been renewed The proper procedure to cure a default in opposing a motion is to move pursuant to CPLR 5015(a) to vacate the default, and, if necessary, to appeal from a denial of that motion.

BSD 253, LLC v. Wilmington Sav. Fund Socy., FSB, NY Slip Op 04429 (2d Dep't August 30, 2023)

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Orders of reference.

A referee's authority derives from a court's order of reference. The referee's jurisdiction is limited to those matters that are expressly specified in the order of reference.

Wachovia Mtge., FSB v. Galiani, NY Slip Op 04428 (2d Dep't August 30, 2023)

Here is the decision.