Vacating a default.

A party seeking to vacate an order entered upon a default in opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion. A conclusory and unsubstantiated claim of ill health is not a reasonable excuse.  The absence of a reasonable excuse for the default renders it unnecessary to determine whether the movant demonstrated the existence of a potentially meritorious opposition to the motion.

Fuchs-Goren v. Goren, NY Slip Op 03736 (2d Dep't July 10, 2024)

Here is the decision.

Contract law.

A contract is to be construed in accordance with the intent of the parties, and the best evidence of their intent is what they express in their written contract. Clear, complete, and unambiguous contractual terms are to be enforced according to their plain meaning, and every aspect of the contract must be accorded meaning and effect. Where the contract was negotiated and relied upon by experienced, sophisticated business actors represented by counsel, the parties are entitled to the commercial certainty that flows from the enforcement of the plain meaning of their unambiguous agreement.

Iberdrola Energy Projects v. Oaktree Capital Mgt. L.P., NY Slip Op 03798 (1st Dep't July 11, 2024)

Here is the decision.

CPLR 3215(c).

Pursuant to CPLR 3215(c), "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed." When an action is subject to a mandatory settlement conference, pursuant to CPLR 3408), motions shall be held in abeyance while conferences are held and the one-year deadline imposed by CPLR 3215(c) is tolled.

Federal Nat. Mtge. Assn. v. Vivenzio, NY Slip Op 03734 (2d Dep't July 10, 2024)

Here is the decision.

Medical malpractice.

The essential elements of a medical malpractice cause of action are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury. When moving for summary judgment, the defendant .has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars. Then, it is the plaintiff's burden to raise a triable issue of fact regarding the element or elements on which the defendant has made its prima facie showing.

Summary judgment is not appropriate where the parties adduce conflicting expert opinions. However, general and conclusory allegations of malpractice, unsupported by competent evidence tending to establish the essential elements, are insufficient to defeat a defendant physician's summary judgment motion. The plaintiff's expert must specifically address the defense expert's allegations.

Fairchild v. Lerner, NY Slip Op 03733 (2d Dep't July 10, 2024)

Here is the decision.

Foreclosure and sale.

A judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action. Here, the entry of the judgment of foreclosure and sale bars consideration of the issues raised by the defendant, since those issues either were raised or could have been raised during the pendency of the action.

Deutsche Bank Natl. Trust Co., v. Matheson, NY Slip Op 03732 (2d Dep't July 10, 2024)

Here is the decision.

Appellate practice.

The plaintiff commenced this action to recover damages for breach of an implied contract and unjust enrichment. The defendant moved pursuant to CPLR 3211(a)(1), (3), and (7) to dismiss the complaint. By order dated June 24, 2022, the Supreme Court granted the motion pursuant to CPLR 3211(a)(3) for lack of standing and pursuant to CPLR 3211(a)(7) for failure to state a cause of action. The plaintiff appeals from so much of the order as granted that branch of the motion which was to dismiss the cause of action to recover damages for unjust enrichment.

On appeal, the plaintiff asserts that the Supreme Court improperly granted the branch of the motion pursuant to CPLR 3211(a)(7) for failure to state a cause of action. However, the plaintiff advances no arguments concerning that portion of the order which granted that branch of the motion pursuant to CPLR 3211(a)(3) for lack of standing. As the plaintiff does not challenge the court's determination that the plaintiff lacked standing to assert a cause of action sounding in unjust enrichment, the plaintiff's contention that the cause of action was not subject to dismissal under CPLR 3211(a)(7) is academic. The Appellate Division affirms the order insofar as appealed from without reaching the plaintiff's arguments concerning CPLR 3211(a)(7).

AA Med., P.C. v. Employee Med. Health Plan of Suffolk County, NY Slip Op 03722 (2d Dep't July 10, 2024)

Here is the decision.

Premises liabiliity.

A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties. In order to establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected. However, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the location of the incident. Without evidentiary proof of notice of prior criminal activity, the owner's duty reasonably to protect those using the premises from such activity never arises.

Lazarus v. Wildlife Preserves, Inc., NY Slip Op 03685 (2d Dep't July 3, 2024)

Here is the decision.

Premises liability.

While an owner or possessor of real property has a duty to maintain the property in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous. Here, the defendants failed to establish, prima facie, that the condition of the floor that caused the plaintiff to fall was open and obvious and not inherently dangerous. Surveillance video footage submitted by the defendants reveals that an employee had mopped the floor of the aisle shortly before the plaintiff fell and that the dangerous condition created by the dampness on the floor in that area was not plainly visible. At the time the plaintiff fell, the employee was mopping a separate area behind a booth, not the area of the aisle where the plaintiff fell. The plaintiff testified at deposition that, prior to her fall, she did not observe the employee mopping the floor or any water on the floor. Moreover, contrary to the defendants' contention, they also failed to eliminate all triable issues of fact as to whether they provided adequate warning of a potentially hazardous condition. The surveillance video shows one "Wet Floor" sign located in an area of the restaurant that was a significant distance from the area where the plaintiff fell. While the employee testified at deposition that she placed a sign in the area where the plaintiff fell, the plaintiff testified that she did not see a sign in the area where she fell, and the surveillance video does not clearly depict a sign in that area. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, the motion for summary judgment dismissing the complaint is denied, without regard to the sufficiency of the plaintiff's opposition papers.

Hoffman v. Dean C Ltd Partnership, NY Slip Op 03684 (2d Dep't July 3, 2024)

Here is the decision.

Dismissal for failure to state a claim.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference. Although the facts pleaded are presumed to be true and are to be accorded every favorable inference, bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration. Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, 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 to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate.  Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.

Gordon v. Vladislav Tsirkin CPA & Co., LLC, NY Slip Op 03682 (2d Dep't July 3, 2024)

Here is the decision.

Expert opinion.

Expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror. The expert must possess the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable. The expert's opinion, taken as a whole, must also reflect an acceptable level of certainty in order to be admissible.

Ghazala v. Shore Haven Apt. Del, LLC, NY Slip Op 03681 (2d Dep't July 3, 2024)

Here is the decision.

Referees' reports.

CPLR 4403 requires a motion to reject a referee's report to be made within 15 days of the filing of the report, while 22 NYCRR 202.44(a) requires the defendant to move to confirm or reject the report within 30 days after notice of the filing of the report.  Here, the referee's report was filed on October 18, 2019, when the plaintiff moved to confirm the report. The defendant's cross-motion was filed on December 11, 2019, more than 30 days later. Therefore, that branch of the defendant's cross-motion which was, in effect, to reject the referee's report was untimely. 

Plaintiff's motion to confirm the referee's report is granted. 

Deutsche Natl. Bank Trust Co. v. Gopaul, NY Slip Op 03679 (2d Dep't July 3, 2024)

Here is the decision.