It is well-settled that, absent extremely unusual mitigating circumstances, an attorney who misappropriates funds is presumptively unfit to practice law. In order to establish the requisite venal intent for intentional conversion, all that is required is evidence that the attorney knowingly withdrew IOLA or escrow funds, without permission or authority, and that he used the funds for his own purposes.
Matter of Etheridge, NY Slip Op 04113 (1st Dep't August 1, 2024)
A properly executed affidavit may provide a foundation for the admission of business records. However, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.
Bayview Loan Servicing, LLC v. Healey, NY Slip Op 04054 (2d Dep't July 31, 2024)
A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. An affidavit that raises only a feigned issue of fact is insufficient to defeat the motion.
Andre v. New York City Dept. of Educ., NY Slip Op 04053 (2d Dep't July 31, 2024)
Under the statute, contractors must provide appropriate safety devices for workers engaging in labor that involves elevation-related risks. In order to prevail on the cause of action, a plaintiff must show, prima facie, that the defendant's statutory violation was a proximate cause of the plaintiff's injuries.
Comparative fault is not a defense to the statute's strict liability, but where the plaintiff is the sole proximate cause of his own injuries, there can be no liability under the statute. A plaintiff may be the sole proximate cause of his own injuries when, acting as a recalcitrant worker, he (1) had adequate safety devices available; (2) knew both that the safety devices were available and that he was expected to use them; (3) chose, for no good reason, not to do so; and (4) would not have been injured had he not made that choice.
Amaro v. New York City Sch. Constr. Auth., NY Slip Op 04052 (2d Dep't July 31, 2024)
Opinion evidence must be based on facts in the record. An expert cannot speculate, guess, or reach a conclusion by assuming material facts not supported by the evidence. The opinion must be supported either by facts disclosed by the evidence or by facts known to the expert personally. It is essential that the facts upon which the opinion is based be established, or fairly inferable, from the evidence.
An expert's affirmation that sets forth general conclusions, misstatements of evidence, and unsupported assertions, and which fails to address the opinions of defendant's expert, is insufficient to defeat summary judgment. Also insufficient is is one which raises for the first time in opposition to summary judgment a new theory of liability that has not been set forth in the bills of particulars or in the complaint.
Cabrera v. Golden, NY Slip Op 04112 (1st Dep't August 1, 2024)
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)
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)
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)
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)
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)
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)