Appointment of a receiver.

CPLR 6401(a) permits the court, upon a motion by a person with an apparent interest in property, to appoint a temporary receiver of the property where there is danger that it will be lost, materially injured or destroyed.  The appointment of a temporary receiver is an extreme remedy resulting in the taking and withholding of possession of property from a party without an adjudication on the merits. The motion seeking the appointment should be granted only where the moving party has made a clear and convincing evidentiary showing of irreparable loss or waste to the property and that a temporary receiver is needed to protect the movant's interests.

American Cancer Socy., Inc. v. Ashby, NY Slip Op 03398 (2d Dep't June 20, 2024)

Here is the decision.

Collateral estoppel.

The amended complaint is dismissed as barred by collateral estoppel. The allegations in plaintiff's third amended complaint in the federal action were substantially identical to her amended complaint herein. The federal action was dismissed because plaintiff failed to establish standing. She did not own the shares that were allegedly stolen; her husband did, although she claimed that she inherited those shares. The issue of plaintiff's injury was 'necessarily decided in the prior federal action between the parties, and plaintiff was granted a 'full and fair opportunity to contest' that finding.

While plaintiff brought the federal action in her capacity as representative of her husbands estate, she also brought individual claims, as she does here, and the dismissal of those individual claims bars plaintiff from relitigating those claims.

Plaintiff unpersuasively relies on the fact that the federal action was dismissed without prejudice. It is true that where a case is dismissed for lack of Article III standing, the dismissal must be without prejudice. However, that does not mean that a plaintiff may simply litigate elsewhere.

Tzanakakis v. Royce, NY Slip Op 03349 (1st Dep't June 18, 2024)

Here is the decision.

Premises liability.

A property owner has a duty to maintain the property in a reasonably safe condition. However, the owner has no duty to protect or warn against a condition that is both open and obvious and not inherently dangerous or trivial in nature. A defendant seeking summary judgment dismissing a cause of action on the ground that an alleged defect is trivial must make a prima facie showing that the defect is physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. A defendant is considered to have constructive notice of a dangerous condition when it is visible and apparent, and has existed for a sufficient length of time prior to the accident to permit the defendant's employees to discover the condition and remedy it.

Bilancione v. Garden Homes Mgt. Corp., NY Slip Op 03157 (2d Dep't June 12, 2024)

Here is the decision.

Appellate practice.

A notice of appeal must be filed and served within 30 days after service by a party of the order and written notice of entry, pursuant to CPLR 5513[a]; 5515[1].

Wells Fargo Bank, N.A. v. Bajana, NY Slip Op 033650 (1st Dep't June 18, 2024)

Here is the decision.

Opposition to summary judgment.

Because plaintiff never amended his complaint to allege that defendants' counterclaims and third-party claims constituted retaliation for his complaint in this action, he may not raise those allegations in opposition to summary judgment.

Caputo v. IESI NY Corp., NY Slip Op 03227 (1st Dep't June 13, 2024)

Here is the decision.

Unjust enrichment.

In order to prevail on an unjust enrichment claim, a party must show: (1) the defendant was enriched; (2) at plaintiff's expense;  and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered.  Here, the parties do not dispute that the elements of a cause of action for unjust enrichment are met. Indeed, the sole owner, officer, and shareholder of the two defendant companies admits that he misappropriated the funds at issue. Equity does not allow a defendant contractor to keep misappropriated funds.

Allen v. Zizzi Constr. Corp., NY Slip Op 03234 (1st Dep't June 13, 2024)

Here is the decision.

Schools' liability.

Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. However, schools are not insurers of safety, as they cannot reasonably be expected to continuously supervise and control all movements and activities of students.

Acosta v. Yonkers Pub. Schs., NY Slip Op 03154 (2d Dep't June 12, 2024)

Here is the decision.

Attorney-client relationships.

The court denied plaintiff's motion for summary judgment on her forfeiture of legal fees claim and granted defendant's motion for summary judgment dismissing the claim. A client may terminate the relationship with an attorney at any time, with or without cause.  Where a client discharges an attorney for cause, the attorney has no right to compensation, even where there is a specific retainer agreement.  Although a hearing is normally required to determine whether an attorney has been discharged for cause, a hearing is not required where, as here, the client did not seek termination for cause until after defendant had already completed her services and had obtained a favorable settlement for plaintiff.

Kasmin v. Josephs, NY Slip Op 03085 (1st Dep't June 6, 2024)

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Protective orders.

Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order precluding disclosure that is palpably improper in that it seeks irrelevant and/or confidential information, or is overly broad and burdensome.

Espinoza v. Tejeda, NY Slip Op 03031 (2d Dep't June 5, 2024)

Here is the decision.

Premises liability.

The owner and operator of a supermarket, a place of public assembly, has a non-delegable duty to the general public to keep its premises safe. Therefore, tbe owner can be held vicariously liable for any negligence on the part of a distributor that caused the premises to be unsafe.

Poidomani v. Shop-Rite Supermarkets, Inc., NY Slip Op 03097 (1st Dep't June 6, 2024)

Here is the decision.

Domestication and enforcement of a foreign judgment.

Plaintiff was entitled to summary judgment, pursuant to CPLR 3213 and article 53, based upon the domestication and enforcement of a foreign judgment. Plaintiff obtained the Casablanca judgment, which was affirmed by the highest court in Morocco, the Court of Cassation. The Casablanca judgment is final, conclusive, and enforceable, even if an appeal is pending and not all procedural requirements for execution abroad have been satisfied, pursuant to CPLR 5302[a][2]. Nothing about the posture of litigation in Morocco renders the judgment unenforceable.

Kotbi v. Najjar, NY Slip Op 03087 (1st Dep't June 6, 2024)

Here is the decision.