Summary judgment as to liability.

A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. The plaintiff is not required to show freedom from comparative negligence in order to establish his prima facie entitlement to judgment as a matter of law.  However, the issue of the plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.

Bornsztjen v. Zito, NY Slip Op 05706 (2d Dep't November 15, 2023)

Here is the decision.

Attorneys' fees.

The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court. In exercising its discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings or engaged in unnecessary litigation.

Blocker v. Blocker, NY Slip Op 05705 (2d Dep't November 15, 2023)

Here is the decision.

Summary judgment.

In this toxic tort action, defendant's summary judgment motion is denied because the parties' competing causation evidence constitutes a battle of the experts.

Sason v. Dykes Lbr. Co., Inc., NY Slip Op 05796 (1st Dep't November 16, 2023)

Here is the decision.

Leave to renew.

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination," pursuant to CPLR 2221[e][2].

Andil v. Wakefern Food Corp., NY Slip Op 05582 (2d Dep't November 8, 2023)

Here is the decision.

Contract law.

Because the dismissal of the contract claims was proper, the motion court also properly dismissed the claims for breach of the alleged implied covenants of good faith and fair dealing. 

2 Girls Accys LLC v. Larrea, NY Slip Op 05782 (1st Dep't November 16, 2023)

Here is the decision.

Medical malprctice.

In order to establish a physician's liability for medical malpractice, a plaintiff must prove that the physician departed from accepted community standards of practice, and that the departure was a proximate cause of the plaintiff's injuries. However, in order to reach the issue of departure from accepted medical practice, it is necessary first to establish the existence of a duty. While physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient. The existence and scope of a physician's duty of care is a question of law to be decided by the court.

Abruzzi v. Maller, NY Slip Op 05704 (2d Dep't November 15, 2023)

Here is the decision.

The relation-back doctrine.

In deciding a motion for leave to serve an amended complaint, the court may properly apply the relation-back doctrine if the original verified complaint put the defendant on notice of the underlying transactions,  pursuant to CPLR 203[f]. 

Spruill v. City of New York, NY Slip Op 05701 (1st Dep't November 14, 2023)

Here is the decision.

Court holiday.

Personal jurisdiction.

In this action, plaintiff seeks to foreclose on its lien on defendant's condominium and to recover unpaid common charges. By appearing in the action, litigating the merits of her disputes with plaintiff, and seeking affirmative relief in the form of a motion to compel production of plaintiff's annual reports, defendant conferred personal jurisdiction on the court. 

Board of Mgrs. of the Residential Section of Galleria Condominium v. Hong, NY Slip Op 05655 (1st Dep't November 9, 2023)

Here is the decision.

Res judicata and collateral estoppel.

The complaint seeking to set aside an arbitration award is barred on the basis of res judicata and collateral estoppel. On plaintiff's previous appeal, in which he sought the same relief, the Appellate Division rejected the same argument that he makes in this action, namely, that the award is invalid and must be set aside under CPLR article 75 because the arbitration proceeding was improper and because the arbitrator's findings were unsupported by the record and were arbitrary and capricious. The fact that plaintiff has pleaded different causes of action and included new parties is of no consequence. Although the parties in both actions are not identical, plaintiff, the party against whom preclusion is sought, was a party in the earlier action. In addition, the current claims are based on the same transaction as in the earlier action, and, therefore, are barred, even though they are based upon different theories. 

Dowlah v. American Arbitration Assn., NY Slip Op 05658 (1st Dep't November 9, 2023)

Here is the decision.

Legal malpractice.

In order to state a cause of action to recover damages for legal malpractice, the plaintiff must allege (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages. Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative. A malpractice claim is viable where the underlying action is settled if the plaintiff alleges that settlement was effectively compelled by the mistakes of counsel. 

Alexim Holdings, LLC v. McAuliffe, NY Slip Op 05581 (2d Dep't November 8 2023)

Here is the decision.