A party's right to contractual indemnification depends upon the specific language of the contract. A promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances.
Alfieri v. ABB, Inc., NY Slip Op 02792 (2d Dep't May 22, 2024)
Under the storm-in-progress rule, a property owner or a tenant in possession will not be held responsible for accidents caused by snow or ice that accumulates during a storm until an adequate period of time has passed following the cessation of the storm to allow an opportunity to ameliorate the hazards caused by the storm. However, once a landowner or a tenant in possession undertakes snow removal during a storm in progress, it must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm. The mere failure of a defendant to remove all the snow and ice, without more, does not establish that the defendant increased the risk of harm.
Corlette v. SN Auto Repairs, Inc., NY Slip Op 02685 (2d Dep't May 15, 2024)
A motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.
Smith-Joyner v. Barahona, NY Slip Op 02718 (2d Dep't May 18, 2024)
The documentary evidence conclusively demonstrates that plaintiff's employment contract with defendants contained a forum selection clause mandating that her action seeking unpaid commissions be brought in Connecticut. Plaintiff does not argue that the clause is unreasonable, unjust, or invalid because of fraud or overreaching. Instead, plaintiff argues that the forum selection clause is contained in a separate contract and, therefore, is inapplicable to her claim for unpaid commissions. That argument is to no effect. All parts of the employment contract were signed by the parties at the same time and involve the same subject matter, namely, the terms and conditions of plaintiff's employment. Thus, the forum selection clause is applicable to plaintiff's action seeking unpaid commissions pursuant to the New York Labor Law.
Kravitz v. Chicken Soup for the Soul, LLC, NY Slip Op 02664 (1st Dep't May 14, 2024)
A claim for constructive fraud is governed by a six-year statute of limitations, and arises at the time the fraud or conveyance occurs, pursuant to CPLR 213[1].
Patterson Belknap Webb & Tyler LLP v. Marcus & Cinelli LLP, NY Slip Op 02670 (1st Dep't May 14, 2024)
At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence. In reviewing a determination made after a hearing, the Appellate Division's authority is as broad as that of the hearing court, and it may render the determination it finds warranted by the facts, taking into account that, in a close case, the hearing court had the advantage of seeing the witnesses.
Bohensky v. 1670 42nd St., LLC, NY Slip Op 02682 (2d Dep't May 15, 2024)
A property owner will not be held liable for injuries sustained from a condition on the property which is inherent or incidental to the nature of the property and which could reasonably be anticipated by those using it. Here, the plaintiff fell in an area of a municipal park which was characterized by reed beds and which was not intended to be a public walkway. The County established, prima facie, that the condition that caused the plaintiff's fall was incidental to the nature of the property and could reasonably have been anticipated in that location. In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the discovery allegedly provided by the County after the summary judgment motion was fully submitted did not require denial of the summary judgment motion, as the plaintiff failed to demonstrate that the facts contained in that discovery were relevant or exclusively within the knowledge and control of the County.
Claus v. County of Nassau, NY Slip Op 02518 (2d Dep't May 8, 2024)
