Summary judgment In a slip-and-fall action.

Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area where the accident occurred.

Ames v. Kimso Apts., Inc., NY Slip Op 04186 (2d Dep't August 14, 2024)

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Employment Law.

Under State law, "if a reasonable accommodation would permit the employee to perform the essential functions of the employee's position, the employee has a 'disability' within the meaning of the statute, and the employer cannot disadvantage the employee based on that disability." The State's definition of "disability" does not include reasonable accommodation, but City law requires that an employer "shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job."  Under both State and City law, an employee's request for an accommodation is relevant to the determination of whether a reasonable accommodation can be made. In order to prevail on a motion for summary judgment, an employer must demonstrate that it engaged in a good faith interactive process that assessed the needs of the disabled individual and the reasonableness of the accommodation requested. Both the employer and the employee have a duty to engage in a good-faith dialogue once the interactive process begins, and an employee who is responsible for the breakdown of that interactive process may not recover for a failure to accommodate. City law affords broader protections than State law, and there is no accommodation that is per se excluded from the category of reasonable accommodation for purposes of the City statute.

Alvarez v. New York City Tr. Auth., NY Slip Op 04185 (2d Dep't August 14, 2024)

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Good faith and fair dealing.

The implied covenant of good faith is a limited one, as courts will find an obligation of good faith only in aid and furtherance of other terms of the agreement. A party who asserts the claim bears a heavy burden of showing not merely that it would have been better or more sensible to include such a covenant within the terms of the agreement, but, rather, that the particular unexpressed promise sought to be enforced is in fact implicit in the agreement viewed as a whole.

DirecTV, LLC v. Nexstar Broadcasting, Inc., NY Slip Op 04225 (1st Dep't August 15, 2024)

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Statute of limitations.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground of the statute of limitations, the defendant must establish, prima facie, that the time in which to commence the action has expired. If the showing is made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4].

Comito v. Z & N Enters. Corp., NY Slip Op 04124 (2d Dep't August 7, 2024)

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Service of process.

Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308. A process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service. Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits. A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the process server's affidavit. Minor discrepancies between the appearance of the person allegedly served and the description of the person served in the affidavit of service are insufficient to raise an issue of fact warranting a hearing.

Citimortgage, Inc. v. Cardali, NY Slip Op 04123 (2d Dep't August 7, 2024)

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Summary judgment.

Successive summary judgment motions are improper in the absence of newly discovered evidence or other sufficient cause.

Perretta v. New York City Tr. Auth., NY Slip Op 04184 (1st Dep't August 8, 2024)

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Discretionary vacatur.

 CPLR 5015(a)(1) provides that the court which rendered a judgment or order may relieve a party from that judgment or order on the ground of excusable default. However, a motion to vacate a judgment or order based on an excusable default must be made within one year after service thereof with notice of entry. Here, the defendant's motion to vacate the order and judgment of foreclosure and sale was made approximately 4½ years after the defendant was served with notice of entry of the order and judgment. As such, the motion was untimely.

Bank of N.Y. Mellon v. Taylor, NY Slip Op 04119 (2d Dep't August 7, 2024)

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Personal jurisdiction.

A defendant's appearance in an action is deemed to be the equivalent of personal service of a summons, and, in the absence of an objection to jurisdiction by way of a motion or answer, the appearance confers personal jurisdiction over that defendant. In addition to the formal appearances listed in CPLR 320(a), a defendant may appear informally by actively litigating the action before the court. Here, the defendant waived the defense of lack of personal jurisdiction by filing a notice of appearance and opposing the plaintiff's motion for leave to enter a default judgment against the defendant and for an order of reference without simultaneously asserting an affirmative objection to jurisdiction.

Bank of N.Y. Mellon v. Taylor, NY Slip Op 04119 (2d Dep't August 7, 2024)

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Leave to reargue.

A motion for leave to reargue is directed to the trial court's discretion. In order to warrant reargument, the moving party must demonstrate that the court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law, pursuant to CPLR 2221[d].

AWR Group, Inc. v. 240 East Place Hous. Dev. Fund Corp., NY Slip Op 04118 (2d Dep't August 7, 2024)

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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)

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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)

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