CPLR 3216.

CPLR 3216 is an extremely forgiving statute, which never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed. While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay and a meritorious cause of action,  such a dual showing is not strictly necessary in order for the plaintiff to escape dismissal.

Here, where discovery has been completed and there is no evidence that the defendants have been prejudiced by any delay, the Supreme Court did not improvidently exercise its discretion in granting the defendants' motion pursuant to CPLR 3216 to dismiss the complaint only to the extent of directing the plaintiff to file a note of issue on or before January 17, 2023, in order to avoid dismissal of the complaint.

Disla v. El Potrero Sport Bar, Inc., NY Slip Op 04060 (2d Dep't July 31, 2024)

Here is the decision.

Summary judgment.

On a motion for summary judgment, the moving defendant does not establish its prima facie entitlement to judgment as a matter of law by merely pointing to gaps in the plaintiff's case. The moving defendant must affirmatively demonstrate the merit of its claim or defense.

Cooper v. First In Queens, Inc., NY Slip Op 04059 (2d Dep't July 31, 2024)

Here is the decision.

Slips-and-falls.

A defendant moving for summary judgment in a slip-and-fall case has the burden of demonstrating, 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 discover and remedy it. The defendant has constructive notice of a dangerous 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. In order to meet its burden on the issue of lack of constructive notice, the defendant is required to offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff slipped and fell.

Carmenati v. Sea Park E., L.P., NY Slip Op 05047 (2d Dep't July 31, 2024)

Here is the decision.

Adverse possession.

It is well-settled that a municipality cannot lose title through adverse possession to property which it owns in its governmental capacity, or which has been made inalienable by statute. Conversely, when a municipality holds real property in its proprietary capacity, there is no immunity against adverse possession.

Bronxville Scout Comm. v. County of Westchester, NY Slip Op 04055 (2d Dep't July 31, 2024)

Here is the decision.

Attorney discipline.

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)

Here is the decision.

Admissibility of business records.

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)

Here is the decision.

Pleading negligence.

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)

Here is the decision.

Labor Law § 240(1).

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)

Here is the decision.

Opinion evidence.

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)

Here is the decision.

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.