The storm-in-progress rule.

A property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. In support of their motion, the defendants submitted climatological records that were not certified and a transcript of the deposition testimony of the plaintiff, which failed to eliminate triable issues of fact as to whether a storm was in progress at the time of the accident and whether the plaintiff slipped and fell on a preexisting condition.

Defendants' motion is denied, without regard to the sufficiency of the plaintiff's opposition papers.

Ahmed v. Fulton Nostrand, LLC, NY Slip Op 03677 (2d Dep't July 3, 2024)

Here is the decision.

Contract law.

The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach. When parties set down their agreement in a clear and complete document, the writing should be enforced according to its terms, This is especially so in real property transactions, where commercial certainty is a paramount concern, and where, as here, the instrument was negotiated between sophisticated, counseled business people negotiating at arm's length. Here, the plaintiff established its prima facie entitlement to judgment as a matter of law, as there is no dispute that the sellers failed to pay the subject fines by the agreed-upon date.

The sellers failed to raise a triable issue of fact in response. The contract provision stating that the sellers "will not be responsible for any work needed to clear the violations of record" and the contract provisions suggesting that the plaintiff was intending to perform construction at the properties do not absolve the sellers from their obligation to pay the fines associated with the open violations. Courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract under the guise of interpreting the writing.

As there is no ambiguity in the contract provision here, the sellers' attempt to introduce extrinsic evidence to alter or add to the terms of the contract is prohibited by the parol evidence rule, as well as by the contract's merger clause .

410 Lefferts, LLC v. 408 Lefferts, LLC, NY Slip 03676 (2d Dep't July 3, 2024)

Here is the decision.

Negligence.

It is well settled that a finding of negligence requires the breach of a duty because, in the absence of a duty, there is no breach, and, without a breach, there can be no liability. If a defendant owes no duty to a plaintiff, there can be no liability in damages, however careless the conduct or foreseeable the harm. Foreseeability should not be confused with duty and may not be relied on to create a duty. The principle of foreseeability is applicable to determine the scope of the duty only after it has been found to exist, and that if there is no duty, then the principle is inapplicable and the foreseeability of the accident is irrelevant.

Dibrino v. Rockefeller Ctr. North, Inc., NY Slip Op 03558 (1st Dep't July 2 2024)

Here is the decision.

Sua sponte dismissal.

A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal.  A court may not sua sponte dismiss a complaint for failure to move for a judgment of foreclosure and sale by an arbitrary date set by the court. In order to obtain appellate review of an order or portion of an order issued sua sponte, a party may move to vacate the order or portion of the order and appeal as of right to the Appellate Division if the motion to vacate is denied. 

James B. Nutter & Co. v. Heirs and Distributees of the Estate of Rose Middleton, NY Slip Op 03472 (2d Dep't June 26, 2024)

Here is the decision.

Premises liability.

A plaintiff may recover in negligence for damages to property when the defendant's failure to maintain real property in a reasonably safe condition proximately caused the plaintiff's damages. A defendant- landowner moving for summary judgment has the burden of establishing, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it. A defendant has constructive notice of a dangerous or defective condition when it is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it. When the defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.

Huang v. Fort Greene Partnership Homes Condominium, NY Slip Op 03471 (2d Dep't June 26, 2024)

Here is the decision.

The death of a party.

The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made, pursuant to CPLR 1015(a).  Any determination rendered without a substitution will be deemed a nullity.

The death of a party terminates the party's attorney's authority to act on behalf of the deceased. Here, the decedent's former attorneys moved to dismiss the complaint, purportedly on behalf of the decedent. Since the former attorneys lacked the authority to act, the Supreme Court lacked jurisdiction to consider the motion. Accordingly, so much of the order as granted the motion purportedly made on behalf of the decedent is a nullity.

Fazilov v. Acosta, NY Slip Op 03470 (2d Dep't June 26, 2024)

Here is the decision.

Moving for summary judgment.

It is axiomatic that successive summary judgment motions are disfavored. Parties may bot make successive fragmentary attacks upon a cause of action, but must assert all available grounds when moving for summary judgment. There can be no reservation of any issue to be used upon any subsequent motion for summary judgment. A court, upon a motion for summary judgment, must examine all of the facts presented by the affidavits, pleadings, and documents and decide whether the moving papers raise a triable issue is raised. The court may not, on a subsequent motion, consider anything which a party has withheld or failed to urge as a ground for summary judgment theretofore denied.

Priester v. Phanor, NY Slip Op 03554 (1st Dep't June 27, 2024)

Here is the decision.

Motions to dismiss.

A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. in order to be considered documentary, evidence must be unambiguous and of undisputed authenticity.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. Upon the submission of evidentiary material in support of such a motion, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that there is no significant dispute exists regarding it, dismissal should not be granted.

B&B Maintenance Servs., Inc. v. Town of Oyster Bay, NY Slip Op[ 03399 (2d Dep't June 20, 2024)

Here is the decision.

Vacatur.

A defendant seeking to vacate a default in answering or appearing pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court.  In determining whether there is a reasonable excuse, a court should consider all the relevant factors, including the extent of the delay, prejudice to the opposing party, whether the default was willful, and the strong public policy in favor of resolving cases on the merits.

Here, the defendant's excuse that he believed that the attorney representing him in separate litigation was addressing this action was unreasonable. Mere neglect is not a reasonable excuse. Likewise, his conclusory and unsubstantiated claim that he was hampered by the restrictions imposed in response to the COVID-19 pandemic does not amount to a reasonable excuse.

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

Here is the decision.