Dismissal based on documentary evidence.

Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

344 Rockaway Parkway Inv. Group, LLC v. Estate of Nedia Colon, NY Slip Op 04644 (2d Dep't September 20, 2023)

Here is the decision.

Arbitration.

Arbitration is a matter of contract, grounded in the agreement of the parties. On a motion to compel or stay arbitration, the court first must determine whether the parties have agreed to submit their disputes to arbitration, and, if so, whether this particular dispute falls within the scope of their arbitration agreement.

All Is. Estates Realty Corp. v. Singh, NY Slip Op 04646 (2d Dep't September 20, 2023)

Here is the decision.

A default in a personal injury action.

By defaulting, the defendant admitted all traversable allegations in the complaint, including the basic allegation of liability.  Therefore, the only issue to be determined at the inquest is the extent of the damages sustained by the plaintiff, and the court may not consider any issues of liability.

Abad v. Francis Lewis, LLC, NY Slip Op 04645 (2d Dep't September 20 2023)

Here is the decision.

Landlord-tenant law.

Where there is an ambiguity as to the meaning of a provision of a lease that was prepared by the landlord, the ambiguity will be resolved in favor of the tenant.

2330  Ocean Assoc., LLC v. Haroun, NY Slip Op 04643 (2d Dep't September 20, 2023)

Here is the decision.

Appellate practice.

The issues raised in connection with prior interlocutory orders are terminated with entry of the final judgment, but these issues may be reviewed as non-final orders that affect the final judgment, pursuant to CPLR 5501 [a] [1].

U.S. Bank, N.A. v. Kim, NY Slip Op 04706 (1st Dep't September 21, 2023)

Here is the decision.

An enforceable agreement to arbitrate.

Defendant established, prima facie, that there was an arbitration agreement by submitting evidence that plaintiff electronically signed defendant's updated terms of use, which included an arbitration provision, by clicking a checkbox and button that confirmed that she had reviewed and consented to the terms. Although plaintiff disputes whether she had inquiry notice of the terms, she did not affirmatively deny actual notice. In addition, defendant established inquiry notice, as a matter of law, by submitting the email and in-application pop-up screen that informed plaintiff that the changes to terms affected arbitration rights and included prominent hyperlinks to the terms in font commonly understood to signify hyperlinks. Plaintiff's arguments disputing the validity of the terms and raising unconscionability must be decided by the arbitrator, because the terms contain a delegation provision that plaintiff did not specifically challenge. 

Wu v. Uber Tech., Inc., NY Slip Op 04706 (1st Dep't September 21, 2023)

Here is the decision.

The doctrine of law of the case.

The doctrine applies only to legal determinations that were previously resolved on the merits.

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

Here is the decision.

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)

Here is the decision.