Alter ego liability.

On a veil piercing claim based on alter ego liability, the plaintiff must show that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that the domination was used to commit a fraud or wrong against the plaintiff which resulted in the plaintiff's injury. In the absence of any wrongdoing, the defendant is entitled to summary judgment dismissing the claim. 

47 E. 34th St. (NY) L.P. v. BridgeStreet World, NY Slip Op 04702 (1st Dep't September 21, 2023)

Here is the decision.

Summary judgment.

A denial of a summary judgment motion is not an adjudication on the merits. Therefore, a party is not relieved from proving its later entitlement to summary judgment merely because, in motion practice, it had previously made out a prima facie case.

47 E. 34th St. (NY) L.P. v. BridgeStreet World, NY Slip Op 04702 (1st Dep't September 21, 2023)

Here is the decision.

Successor liability.

Generally, a corporation which acquires the assets of another is not liable for its predecessor's torts. There are limited exceptions to this general rule, including the mere continuation theory at issue here, under which there may be liability where the purchasing corporation is merely a continuation of the selling corporation. A successor liability claim cannot stand where the surviving corporation did not acquire the assets of the selling corporation.

47 E. 34th St. (NY) L.P. v. BridgeStreet World, NY Slip Op 04702 (1st Dep't September 21, 2023)

Here is the decision.

Negligent foster care.

Counties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home. In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated.

Grabowski v. Orange County, NY Slip Op 04580 (2d Dep't September 13, 2023)

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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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.