Vacating a default.

In order to vacate a default in appearing at a conference, the defaulting party must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action. The determination of whether an excuse is reasonable lies within the sound discretion of the trial court. The court may accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation of the default. However, law office failure should not be excused where the default results not from an isolated, inadvertent mistake, but from repeated neglect, or where allegations of law office failure are vague, conclusory, and unsubstantiated.

All Is. Realty Corp. v. Roma Imported Car Ctr., Inc., NY Slip Op 04051 (2d Dep't July 31, 2024)

Here is the decision.

Employment law.

In order to establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the plaintiff's injury.  Here, the amended complaint failed to state a cause of action to recover damages for negligent hiring and retention since it failed to allege that the defendant knew, or should have known, of a propensity on the part of any employee or employees to commit an alleged wrongful act.

Abbas v. Richmond Univ. Med. Ctr., NY Slip Op 04050 (2d Dep't July 31, 2024)

Here is the decision.

Contract law.

A stipulation of settlement that is incorporated, but not merged, into a judgment of divorce is a contract subject to the ordinary principles of contract construction and interpretation. Such a contract is interpreted in accordance with the intent of the parties. The best evidence of their intent is expressed in their written agreement. Clear, unambiguous contractual terms must be enforced according to their plain meaning, and the court may not by construction add or excise terms to create a new contract for the parties under the guise of interpreting the writing.

Sebrell v. Svet, NY Slip Op 04115 (1st Dep't August 1, 2024)

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Motions to extend time.

Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default, pursuant to CPLR 3012[d].  A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012(d) must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. This determination is based on numerous factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits.

Bacova v. City of New York, NY Slip Op 03872 (2d Dep't July 24, 2024)

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Landlord-tenant law.

At common law, when a tenant remains in possession after the expiration of a lease, there is implied a continuance of the tenancy on the same terms and subject to the same covenants as those contained in the original instrument.

Absolute Med. Servs., Inc. v. Garnerville Holding Co., Inc., NY Slip Op 03871 (2d Dep't July 24, 2024)

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Liability on a personal guaranty

The terms of a guaranty are to be strictly construed, and the guarantor may not be found liable beyond the express terms of the guaranty. A holdover tenancy, in and of itself, cannot  extend a personal guarantee in the absence of an explicit provision in the guaranty.

Absolute Med. Servs., Inc. v. Garnerville Holding Co., Inc., NY Slip Op 03871 (2d Dep't July 24, 2024)

Here is the decision.

Foreclosures.

An action to foreclose a mortgage is governed by a six-year statute of limitations, However even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt. The entire mortgage debt will be deemed to have been accelerated by, as relevant here, the commencement of a mortgage foreclosure action in which the complaint seeks payment of the full outstanding loan balance.

A person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge of record that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired, provided that the mortgagee or its successor was not in possession of the subject real property at the time the action to cancel and discharge of record the mortgage was commenced.

2078 Mgt., LLC v. US Bank Trust, N.A., NY Slip Op 03870 (2d Dep't July 24, 2024)

Here is the decision.

Intentional infliction of emotional distress.

First recognized as a cognizable cause of action in 1978, the tort is designed to provide a remedy to an individual who suffers severe emotional distress after being subjected to extreme and outrageous conduct by another who intends to cause that distress or does so recklessly.

The cause of action action has four elements: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and [plaintiff's] injury; and (4) severe emotional distress.

Extreme and outrageous conduct is that which goes beyond all possible bounds of decency, so as to be regarded as atrocious, and utterly intolerable in a civilized community.

Brown v. Riverside Church in the City of N.Y., NY Slip Op 03927 (1st Dep't July 25, 2024)

Here is the decision.

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)

Here is the decision.