Notices of claim.

The court providently exercised its discretion by denying plaintiff's motion for leave to file a late notice of claim on defendants New York City Health & Hospitals Corporation (HHC) and Bellevue Hospital, pursuant to General Municipal Law § 50-e[5]. The court properly determined that it could not grant leave as to the medical malpractice and negligence claims alleged in the complaint because the one-year and 90-day statute of limitations for those claims expired before the motion was made. Moreover, the complaint does not expressly assert a cause of action for wrongful death and fails to allege the required element that the decedent's estate had distributees who could have suffered pecuniary loss by reason of her death.

Axisa v. New York City Health & Hosps. Corp., NY Slip Op 038=926 (1st Dep't July 25, 2024)

Here is the decision.

Premises liability.

Owners and lessees are under a duty to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. In order for a defendant charged with maintaining a property to be liable in tort as a result of an allegedly defective condition upon the property, it must be established that the defendant affirmatively created the condition or had actual or constructive notice of it. A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected. In addition, a defendant who has actual knowledge of a particular ongoing and recurring hazardous condition may be charged with constructive notice of each specific reoccurrence of that condition. A defendant will be deemed to have constructive notice where there is evidence of an ongoing and recurring dangerous condition in the area of the accident which was routinely left unaddressed. Mere notice of a general or unrelated problem is not enough; the particular defect that caused the damage must have been apparent.

Graham v. New York City Hous. Auth., NY Slip Op 03810 (2d Dep't July 17, 2024)

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Motion practice.

In the exercise of its discretion, a court may grant relief not specifically requested in the notice of motion, pursuant to a general prayer for relief contained in the notice of motion, if the relief is warranted by the facts plainly appearing on the papers on both sides, and if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.

Here, the defendant, in its answer, pled statute of limitations as an affirmative defense but did not move to dismiss on that ground pursuant to CPLR 3211(a). The Supreme Court did not improvidently exercise its discretion in declining to dismiss the complaint on statute of limitations grounds.

Caesar v. Metropolitan Transportation. Auth., NY Slip Op 03807 (2d Dep't July 17, 2024)

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Condominium boards.

In reviewing a condominium board's actions, courts should apply the business judgment rule, under which the court's inquiry is limited to whether the board acted within the scope of its authority under the by-laws and whether the action was taken in good faith to further a legitimate interest of the condominium. Absent a showing of fraud, self-dealing, or unconscionability, the court will not inquire as to the wisdom or soundness of the business decision.

Board of Mgrs. of Oceanview Condominium v. Riccardi, NY Slip Op 03806 (2d Dep't July 17, 2024)

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Mortgage law.

A mortgagee's interest in the property is protected unless it has notice of a previous fraud affecting the title of its grantor. The mortgagee is under a duty to make an inquiry where it is aware of facts 'that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue. A mortgagee who fails to make such an inquiry is not a bona fide encumbrancer for value. The question of what constitutes fair consideration is generally one of fact, to be determined under the circumstances of the particular case.

Baldeo v. HSBC Bank USA, NA, NY Slip Op 03805 (2d Dep't July 17, 2024)

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Motions to dismiss.

When seeking a CPLR 3211 dismissal, a defendant can submit evidence, such as affidavits or testimony, attacking a well-pleaded cognizable claim.  Such submission change the CPLR 3211 inquiry from whether the pleader has stated a cause of action to whether the pleader has a cause of action amenable to relief, or whether the defendant has a complete defense to the claims. Any such evidence must conclusively establish, as a matter of law, a defense to the plaintiff's claims.

Holder v. Jacob, NY Slip Op[ 03864 (1st Dep't July 18, 2024)

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Contract law.

The defendant's motion to dismiss the causes of action alleging breach of contract and unjust enrichment pursuant to CPLR 3211(a)(7) is granted. The asset purchase agreement constituted a voluntary prospective arrangement for the splitting of fees in violation of the Education Law because it required the defendant to pay the plaintiff a percentage of revenue generated by the plaintiff's practice and, under certain conditions, the defendant's own separate dental practice. A party to an illegal contract cannot ask a court of law to help him carry out an illegal object. Neither can the party plead or prove in any court a case in which setting forth or proving the claim would reveal its illegal purpose. 

Advanced Dental of Ardsley, PLLC v. Brown, NY Slip Op 03804 (2d Dep't July 17, 2024)

Here is the decision.

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)

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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)

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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.