Account stated.

An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due. An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account.

D & N Lending, LLC v. Tachlis Corp., NY Slip Op 06115 (2d Dep't November 29, 2023)

Here is the decision.

Appellate practice.

No appeal lies from the denial of reargument. Here, the appellant's motion, though denominated as one for leave to renew and reargue, was, in actuality, one for leave to reargue, the denial of which is not appealable. The appeal is dismissed, with costs.

Constable v. Staten Is. Univ. Hosp., NY Slip Op 06114 (2d Dep't November 29, 2023)

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Labor Law.

Labor Law § 200 codifies an owner's or general contractor's common-law duty of care to provide construction site workers with a safe place to work. Claims under this section may arise from an alleged defect or dangerous condition on the premises, or from the manner in which the work was performed.  Where the defendant is not an owner or general contractor, there can be no liability under Labor Law § 200.

Tisselin v. Memorial Hosp. for Cancer & Allied Diseases, NY Slip Op 06210 (1st Dep't November 30, 2023)

Here is the decision.

Condominium boards.

The board is responsible for running the day-to-day affairs of the condominium, and, to that end, may have broad powers regarding financial decision-making and promulgating regulations. Where the board's disputed decision is based on a governing document which provides that consent shall not be unreasonably withheld, the heightened standard of reasonableness is applied in lieu of the usual business judgment rule. This standard of reasonableness hinges on whether the board's decision is legitimately related to the welfare of the condominium.

Wong v Board of Mgrs. of the 45 W. 67th St. Condominium, NY Slip Op 06211 (1st Dep't November 30, 2023)

Here is the decision.

Appellate practice.

An order is not appealable as of right where the order did not decide a motion made on notice, pursuant to CPLR 5701[a][2]. However, the Appellate Division may deems the notice of appeal to be a motion for leave to appeal, and it may grant such leave.

Junmei Zhang v. City of New York, NY Slip Op 06325 (1st Dep't December 7, 2023)

Here is the decision.

Appellate practice.

The Supreme Court properly treated the defendant's motion, denominated as one for leave to renew and reargue its motion for summary judgment, as one for leave to reargue the motion. As the denial of a motion for leave to reargue is not appealable, the appeal from the order must be dismissed.

Brilliantine v. East Hampton Fuel Oil Corp., NY Slip Op 06112 (2d Dep't November 29, 2023)

Here is the decision.

Rear-end collisions.

It is well-settled that a rear-end collision with a slowing or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the the trailing vehicle.  A defendant's claim that the lead vehicle made a sudden stop, without more, is insufficient to rebut the presumption of negligence.

Here, plaintiff met the prima facie burden of establishing his entitlement to summary judgment on the issue of liability by submitting an affidavit stating that when he braked because of the 15 miles per hour speed limit imposed in a construction area, defendant's car collided with the rear of his vehicle.

In opposition, defendant failed to provide a non-negligent explanation for the accident. Defendant failed to establish that she maintained a safe following distance, pursuant to Vehicle and Traffic Law § 1129[a], and that plaintiff's repeated braking was not foreseeable given the speed limitation in the construction zone.

Plaintiff's motion was not premature, pursuant to CPLR 3212[f]. His affidavit established that a rear-end collision occurred, and defendant was in a position to proffer sufficient relevant information concerning the circumstances of the accident.

Ahmad v. Behal, NY Slip Op 06196 (1st Dep't November 30, 2023)

Here is the decision.

Summary judgment.

Successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause.  Evidence is not newly discovered simply because it was not submitted on the previous motion. Instead, the evidence that was not submitted must be used to establish facts that were not available to the party at the time it made its initial motion and which could not have been established through alternative evidentiary means.

Here, the defendant failed to establish that the evidence submitted in support of its second motion for summary judgment dismissing the plaintiffs' claims for damages relating to the diminution in value of certain real property and of certain artwork, purportedly demonstrating that the plaintiffs did not sustain any damages as a result of an oil spill, was not available to it, and could not have been submitted, on its prior motion.

In any event, the conflicting experts' opinions submitted by the parties raise issues of fact which preclude summary judgment.

Defendant's motion is denied.

Brilliantine v. East Hampton Fuel Oil Corp., NY Slip 06111 (2d Dep't November 29, 2023) 

Here is the decision.

Contract law.

A stipulation of settlement that is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation.  In interpreting a stipulation of settlement, the court should arrive at a construction that will give fair meaning to all of the language employed by the parties in order to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.  A court may not rewrite an agreement by adding or excising terms under the guise of construction, and it may not construe the language in such a way as would distort the contract's apparent meaning. Neither can a court cannot reform an agreement so as to conform to what it thinks is proper, if the parties have not assented to such a reformation.

Anderson v. Anderson, NY Slip Op 06108 (2d Dep't November 29, 2023)

Here is the decision.

1941.

Contract law.

The basic principles of contract interpretation apply to by-laws and offering plans. The relevant provisions of related documents must be read together, and where the language of the instrument at issue is unambiguous, it will be upheld and enforced according to the plain meaning of its terms.

Mazumdar v. Board of Mgrs. of Striver Gardens Condominium, NY Slip Op 05988 (1st Dep't November 21, 2023)

Here is the decision.