Further discovery is necessary in order to resolve factual questions, most notably the precise location at which the accident occurred and the party responsible for repair and maintenance. Therefore, the CPLR 3211 motion to dismiss is denied as premature.
Wright v, City of New York, NY Slip Op 00253 (1st Dep't January 18, 2024)
In order to state a valid cause of action alleging legal malpractice, the plaintiff must plead sufficient facts to show that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession. In order to establish causation, the plaintiff must show that, but for the attorney's negligence, he would have prevailed in the underlying action or would not have incurred any damages. A defendant moving for summary judgment dismissing the cause of action has the burden of establishing prima facie that he did not fail to exercise such skill and knowledge, or that the allege departure did not proximately cause the plaintiff to sustain damages.
Amid v. Del Col, NY Slip Op 00178 (2d Dep't January 17, 2024)
A claim arising subsequent to a prior action is not barred by res judicata even if the new claim is premised on facts representing a continuance of the same course of conduct.
3rd & 60th Assoc. Sub LLC v. Zavolunov, NY Slip Op 00160 (1st Dep't January 16, 2024)
An out-of-possession landlord is not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or a course of the landlord's conduct giving rise to a duty. When an out-of-possession landlord retains some control and has a contractual duty to make repairs to the leased premises, the question of liability will turn on whether the injury-producing condition fell within the landlord's contractual responsibilities.
N.G. v. DRF Mgt. Corp., NY Slip Op 00065 (2d Dep't January 10, 2024)
While a claim of alter ego liability is fact-laden, the claim may be dismissed on a CPLR 3211 motion.
S.M. v Madura, NY Slip Op 00155 (1st Dep't January 11, 2024)
A motion for leave to reargue must be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but may not include any matters of fact not offered on the prior motion, pursuant to CPLR 2221[d][2]. The determination to grant leave lies within the sound discretion of the motion court. The motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented.
Emigrant Bank v. Kaufman, NY Slip Op 00064 (2d Dep't January 10, 2024)
On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear. The motion court does not have a mandatory, ministerial duty to grant the motion, and retains the discretionary obligation to determine whether the movant has met the burden of pleading a viable cause of action.
Cunningham v. New York City Dept. of Educ., NY Slip Op 00063 (2d Dep't January 10, 2024)
The movant must establish that: (1) there was a lawful court order, clearly expressing an unequivocal mandate; (2) with knowledge of the order's terms, the order was disobeyed; and (3) the movant was prejudiced by the offending conduct. There is a showing of prejudice where the offending party's actions were calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of a party. The movant bears the burden of establishing contempt by clear and convincing evidence, and the motion is addressed to the court's sound discretion.
Colon v. Crespo, NY Slip Op 00062 (2d Dep't January 10, 2024)
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's comparative fault, or lack thereof, is not a consideration in determining whether the plaintiff has made a prima facie showing on the issue of the defendant's liability. 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 and culpable conduct on the part of the plaintiff.
Ali v. Alam, NY Slip Op 00061 (2d Dep't January 10, 2024)
The City may be liable under the special relationship doctrine only if the action at issue was a ministerial one, as opposed to a discretionary one, and if the City violated a duty owed to plaintiff that is separate and apart from its duty to the public generally. It is well-settled that providing temporary housing for homeless families is a governmental function mandated by the state constitution for the benefit of the general public.
Maldonado v. Young & Booby Realty Corp., NY Slip Op 00048 (1st Dep't January 9, 2024)
Defendant's motion in limine to bar testimony by plaintiff concerning conversations with decedent regarding her will and estate plan is granted. Plaintiff's testimony concerning conversations with decedent regarding her intention that he receive half of her estate after his divorce was final is barred by CPLR 4519, since the testimony would be offered against defendant, decedent's survivor, who derived her interest in decedent's assets from decedent.
However, CPLR 4519 does not bar the testimony of third-party witnesses concerning conversations with decedent about her will, estate plan, or the alleged oral agreement between plaintiff and defendant to transfer to plaintiff half of decedent's assets after his divorce, since the third parties do not have an interest in decedent's estate. Testimony by plaintiff concerning the alleged oral agreement is proper since those conversations do not constitute extrinsic evidence in derogation of the will and do not call into question whether the will reflected decedent's intentions. Although extrinsic evidence may not be used to challenge a clear and unambiguous will, here, the issue is whether the parties had an oral agreement that required defendant to transfer certain property or assets to plaintiff after distribution of the estate.
Castellotti v. Free, NY Slip Op 00045 (1st Dep't January 9, 2024)