Slips and falls.

Defendant is not entitled to dismissal of the complaint on the basis that the alleged defect on the sidewalk abutting its property was not the cause of plaintiff's fall. Plaintiff consistently and unequivocally testified that she tripped on an uneven sidewalk abutting 1577 Third Avenue and that she immediately realized that a raised sidewalk flag extending about an inch above its adjoining flag had caused her fall. At her deposition, plaintiff pinpointed the alleged defect by indicating its location in photographs of the sidewalk, which depicted a raised sidewalk flag.

Defendant also is not entitled to summary judgment on the basis that the alleged defect was trivial. In light of plaintiff's testimony, photos of the accident location, and the conflicting expert affidavits on the height differential of the sidewalk flags, there are triable issues of fact as to whether the defect was trivial. In particular, while defendant's expert testified that the height difference between the two sidewalk flags was one quarter of an inch and was trivial, plaintiff's expert concluded that the height difference was three quarters of an inch and presented a tripping hazard. Moreover, defendant waived any objection to plaintiff's expert's affidavit as untimely or speculative by not objecting to its being considered on the motion.

Shapiro v. 89th St. Dev. Co. LLC, NY 05211 (1st Dep't October 12, 2023)

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Service of process.

Service must be made in strict compliance with the statutory methods for effecting personal service upon a natural person' pursuant to CPLR 308, Here, the plaintiff purportedly served the defendant by the affix and mail method of CPLR 308(4). Service pursuant to CPLR 308(4) may be used only where service pursuant to CPLR 308(1) or (2) cannot be made with due diligence. The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received.

Here, according to his affidavit of service, the process server made prior attempts at personal delivery of the summons and complaint at the defendant's residence at different times of the day between Thursday, December 21, 2017 and Friday, December 29, 2017. Although one of those times was on December 23, 2017, a Saturday, the attempts at service occurred at the height of the holiday season, when the defendant may have had reasons not to be home. The process server noted that holiday lights were on in the windows of the residence on December 23, and that both. floors of the residence were illuminated on December 26. Nevertheless, considering the holiday season, the process server's observations were not a sufficient basis to believe that the defendant was evading service. Moreover, the process server stated that he was unable to speak to a neighbor regarding the defendant's whereabouts.

In addition, in the year prior to the commencement of this action, in applying for a loan modification, the defendant was required to disclose his employer and address of employment to the plaintiff. The plaintiff did not try to serve the defendant at his place of employment. The plaintiff failed to demonstrate that the process server acted with due diligence before resorting to affix and mail service pursuant to CPLR 308(4).

Bank of America, N.A. v. Fischer, NY Slip Op 05112 (2d Dep't October 11, 2023)

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Indemnification.

In order to establish a claim for common-law indemnification, a party must prove that it was not negligent and that the proposed indemnitor was responsible for negligence that contributed to the accident. 

Balanta v. Guo Lin Wu, NY Slip Op 05111 (2d Dep't October 11, 2023)

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Appellate practice.

The Appellate Division may consider a legal argument that was not raised before the trial court if it appears on the face of the record and could not have been avoided if it had been raised.

Wagman v. Morgan Stanley Children's Hosp. of N.Y. Presbyt., NY Slip Op 05214 (1st Dep't October 12, 2023)

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Objecting to service of process.

The Appellate Division affirmed the Supreme Court's determination that the defendant waived any challenge to service because he actively participated in the litigation by formally appearing, addressing the merits of the petition, and raising objections about service upon another party before raising an issue about service upon himself. The Appellate Division noted that, as per an affirmation of service, relevant papers were served by email after the defendant, an attorney, consented to service by email.

Matter of Montal v. Koplen, NY Slip Op 05165 (2d Dep't October 11, 2023)

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Vacating a default.

In order to vacate a default judgment, the movant must establish both a reasonable excuse for its default and a meritorious defense to the plaintiff's claims. A corporate defendant's failure to update the aaddress of its agent for service of process is not a reasonable excuse for defaulting. In the absence of a reasonable excuse, the issue of the defendant's defenses will not be addressed.

Shabtai v. HFZ Capital Group, LLC, NY Slip Op 05109 (1st Dep't October 10, 2023)

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Appellate practice.

Respondent failed to oppose, or even address, the appeal of the denial of appellant's motion for an extension of time to move for summary judgment. Therefore, respondent concedes that point and the Appellate Division reverses that portion of the court's order, provided that appellant serves its motion for summary judgment within 60 days.

IO Experience Design LLC v. C & A Mktg. Inc., NY Slip Op 05038 (1st Dep't October 5, 2023)

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Discovery.

CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." However, a party is not entitled to unlimited, uncontrolled, and unfettered disclosure. Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order striking a notice for discovery and inspection that is palpably improper. The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court.

Here, the Appellate Division determined that the Supreme Court providently exercised its discretion in directing the defendant to produce repair-related records for the stairway on which accident occurred and a list of all employees and contractors that worked on the stairway for two years before the accident. The plaintiffs demonstrated that those documents were material and necessary to the prosecution of the action, and the defendant failed to demonstrate that a protective order was warranted with respect to those documents.

However, the Supreme Court erred in directing the defendant to disclose records for one year after the accident. Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case. There is an exception to this rule if the defendant's maintenance of, or control over, the accident's instrumentality is at issue. Here, there is no issue as to the maintenance and control of the stairway.

C.B. v. New York City Tr. Auth., NY Slip Op 04650 (2d Dep't September 20, 2023)

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A claim for tortious interference with contract.

In order to plead the cause of action, a plaintiff must allege (1) the existence of a valid contract; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procuring of the breach of the contract; and (4) damages. The complaint will be dismissed where the plaintiff fails to sufficiently allege that, but for the defendant's conduct, the contract would not have been breached. 

111 W. 57th Inv. LLC v. 111 W57 Mezz Inv. LLC, NY Slip Op 05029 (1st Dep't October 5, 2023)

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The duty of loyalty.

The duty of loyalty is grounded in the faithless servant doctrine. The duty is breached where the employee, acting as the employer's agent, unfairly competes with his employer and diverts business opportunities to himself or others to the employer's financial detriment. Here, defendant does not dispute that he referred a matter to another law firm without plaintiff's knowledge or consent and collected more than $140,000 in referral fees. A for-profit referral, without plaintiff's knowledge or consent, violates defendant's duty of loyalty and, at a minimum, entitles plaintiff to the referral fee.

Barasch & McGarry, PC v. Marcowitz, NY Slip Op 04815 (1st Dep't September 28, 2023)

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Notices of claim.

Plaintiffs seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim, pursuant to General Municipal Law § 50-e. The notice must set forth the nature of the claim and the time when, the place where, and the manner in which the claim arose. The test of the sufficiency of the notice is whether it includes information sufficient to enable the public entity to pinpoint the place, fix the time, and understand the nature of the accident at issue. Claims of roadway, sidewalk, or similar defects must be set forth with great specificity because of their transitory nature. A court deciding a motion to dismiss a complaint on the ground that the notice is insufficient may consider the testimony provided during an examination pursuant to General Municipal Law § 50-h, as well as any other evidence properly before the court.

A.A. v. City of New York, NY Slip Op 04744 (2d Dep't September 27, 2023)

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