Appellate practice.

In reviewing a determination made after a nonjury trial, the Appellate Division's power is as broad as that of the trial court, and it may render a judgment that it finds warranted by the facts, bearing in mind that, in a close case, the trial court had the advantage of seeing and hearing the witnesses. Where the trial court's findings of fact rest, in large measure, on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations.

Ali v. Rahaman, NY Slip Op 00751 (2d Dep't February 14, 2024)

Here is the decision.

A plaintiff's motion to proceed anonymously.

In determining whether to grant the motion, the court must use its discretion in balancing the plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to the defendant. Among the factors the court should consider are: 1) whether the plaintiff is challenging governmental activity or an individual's actions; 2) whether the plaintiff's action requires disclosure of information of the utmost intimacy; 3) whether identification would put the plaintiff or innocent third-parties at risk of suffering physical or mental injury; 4) whether the defendant would be prejudiced by allowing the plaintiff to proceed anonymously; and 5) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system.

Doe v. Mesivtha, Inc., NY Slip Op 00614 (2d Dep't February 7, 2024)

Here is the decision.

Requests to re-plead.

Plaintiffs' request to re-plead is denied, as they did not submit an amended pleading or any specific information about the nature of the proposed claims.

Rosenberg v. OSG, LLC, NY Slip Op 00691 (1st Dep't February 8, 2024)

Here is the decision.

Orders of reference.

CPLR 4313 requires that "[u]nless the order of reference otherwise provides, the referee shall forthwith notify the parties of a time and a place for the first hearing to be held." So, unless the order of reference indicates that a hearing is unnecessary, it is error for the referee to issue a report without holding a hearing on notice to the parties. Here, the defendant established that it was entitled to a hearing before the referee issued a report. Accordingly, the Supreme Court properly granted the defendant's cross-motion to reject the referee's report.

Board of Mgrs. of the Poseidon Condominium v. Costantino Prop. Mgt., LLC, NY Slip Op 00608 (2d Dep't February 7, 2024)

Here is the decision.

Indemnification.

A party's right to contractual indemnification depends upon the specific language of the contract. A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances.

Alvarenga v. Castagna Realty Co., Inc., NY Slip Op 00607 (2d Dep't February 7, 2024)

Here is the decision.

Court holiday.

Service of process.

Personal jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been complied with. Here, plaintiff's affidavit evidencing service at defendant's place of business fails to include any proof of mailing as required by CPLR 308(2), and no evidence of compliance with the mailing requirement is otherwise found in the record. Service was invalid.

Williams v. MTA Bus Co., NY Slip Op 00692 (1st Dep't February 8, 2024)

Here is the decision.

Special trial preferences.

In this personal injury action, plaintiff was allegedly injured by a fall from an elevated platform while she was performing at the Metropolitan Opera House, a venue owned and operated by defendant Metropolitan Opera Association, Inc.

Plaintiff sought a special trial preference in the interest of justice, pursuant to CPLR 3403[a][3]. In the exercise of its discretion, the court denied special trial preference, noting that while plaintiff's income decreased post-accident, it remained reasonably adequate.

White v. Metropolitan Opera Assns., Inc., NY Slip Op 00467 (1st Dep't February 1, 2024)

Here is the decision.

Contribution claims.

Purely economic loss resulting from a breach of contract does not constitute 'injury to property'" within the meaning of the contribution statute, CPLR 1401.

Harriet Tubman Gardens Apt. Corp. v. H.T. Dev. Corp., NY Slip Op 00677 (1st Dep't February 8, 2024)

Here is the decision.

The business judgment rule and coop and condo boards.

The business judgment rule is applicable to the board of directors of cooperative and condominium corporations.  Pursuant to the rule, a court should defer to the board's determination so long as the board acts for the purposes of the cooperative of condominium, within the scope of its authority and in good faith. Unequal treatment of shareholders is sufficient to overcome the directors' insulation from liability under the rule, and a director who participates in the commission of a tort committed by the board may be held individually liable.

72 Poplar Townhouse, LLC v. Board of Mgrs. of the 72 Poplar St. Condominium, NY Slip Op 00606 (2d Dep't February 7, 2024)

Here is the decision.

Summary judgment in lieu of complaint.

Because the guaranty at issue reserves to defendant guarantor all defenses that were or may be available to the guaranteed party under a complex commercial contract, it does not qualify as the type of unconditional obligation that is appropriate for treatment under CPLR 3213.

Vitol Ams. Corp. v. Targa Resources Partners LP, NY Slip Op 00466 (1st Dep't February 1, 2024)

Here is the decision.