Recovery in tort against a municipality.

Persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim within 90 days after the claim arises. Pursuant to General Municipal Law § 50-e(2), the notice must set forth the nature of the claim, and the time, place, and manner in which the claim arose. The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the public entity to locate the place, fix the time, and understand the nature of the accident. Claims of roadway, sidewalk, or similar defects must be set forth with great specificity because of their transitory nature.   A court determining a motion to dismiss a complaint on the ground that the notice of claim is insufficient must examine the four corners of the notice, and may consider the testimony provided during an examination pursuant to General Municipal Law § 50-h, as well as any other evidence properly before the court. However, this evidence cannot be used to substantively change the nature of the claim or the theory of liability, since causes of action or legal theories may not be raised in the complaint or in a bill of particulars that were not directly or indirectly mentioned in the notice of claim and that change the nature of the claim or assert a new one.

Behrens v. Town of Huntington, NY Slip Op 04301 (2d Dep't August 28, 2024)

Here is the decision.

Commencing a foreclosure action.

Strict compliance with RPAPL 1304 providing notice to the borrower is a condition precedent to the commencement of a foreclosure action.  Pursuant to the statute, notice must be sent "by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage." A plaintiff demonstrates statutory compliance by submitting proof of the actual mailings or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure.

Bank of Am., N.A. v. Sach, NY Sli[p Op 04300 (2d Dep't August 28, 2024)

Here is the decision.

Premises liability.

In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous condition nor had actual or constructive notice of its existence. In order to meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.  Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice. However, in order to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it. When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.

K. B. v. City of Mount Vernon, NY Slip Op 04299 (2d Dep't August 28, 2024)

Here is the decision.

Equitable distribution of marital property.

A trial court is vested with broad discretion in making an equitable distribution of marital property, and, unless it is shown that the court improvidently exercised that discretion, its determination should not be disturbed on appeal. Equitable distribution is based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner, or homemaker. The distribution of marital assets depends not only on the financial contribution of the parties but also on a wide range of non-remunerated things such as homemaking, raising children, and the providing of the emotional and moral support necessary to sustain the other spouse in coping with matters outside the home.

Albano v. Albano, NY Slip Op 04298 (2d Dep't August 28, 2024)

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Evidentiary rulings.

Trial courts are accorded wide discretion in making evidentiary rulings, and those rulings should not be disturbed on appeal absent an improvident exercise of discretion or a showing of prejudice to a substantial right, pursuant to CPLR 2002.

6 Harbor Park Dr., LLC v. Town of N. Hempstead, NY Slip Op 04297 (2d Dep't August 28, 2024)

Here is the decision.

Running a light.

A driver who enters an intersection against a red traffic light in violation of Vehicle and Traffic Law § 1110(a) is negligent as a matter of law. Here, the plaintiff established prima facie entitlement to judgment as a matter of law by submitting a transcript of his deposition testimony, which demonstrated that he proceeded through the intersection with a green traffic light and that the defendant's conduct was the sole proximate cause of the accident, as the defendant entered the intersection against a red traffic light. In opposition, however, the defendant raised a triable issue of fact by submitting a transcript of his deposition testimony, wherein he averred that when he entered the intersection, the traffic light was green in his favor, and further averred that he stopped fully before the plaintiff's vehicle struck the defendant's vehicle.  The plaintiff's motion for summary judgment on the issue of liability is denied.

Degachi v Faridi, NY Slip Op 04241 (2d Dep't August 21, 2024)

Here is the decision.

Confirming a referee's report.

The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility. However, any computations based on the review of unidentified and unproduced business records are inadmissible hearsay and lack probative value.

Here, the referee's report was based upon her review of the note and mortgage, the summons and complaint, and an affidavit of merit and the amount due to the plaintiff. However, the affiant failed to produce the business records that the referee purportedly relied on in making her calculations.

Plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied.

Countrywide Home Loans Servicing, L.P. v. Weberman, NY Slip Op 04240 (2d Dep't August 21, 2024)

Here is the decision.

Motor vehicle accidents.

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he was not at fault in the happening of the accident. There can be more than one proximate cause of an accident, and a defendant moving for summary judgment must show that he is free from fault. Pursuant to Vehicle and Traffic Law § 1214, "[n]o person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic."

Angelastro v. Dyer, NY Slip Op 04237 (2d Dep't August 21, 2024)

Here is the decision.

Extending time to commence an action.

CPLR 205(a) extends the time to commence an action after the termination of an earlier related action, where both actions involve the same transaction or occurrence or series of transactions or occurrences. However, the six-month grace period provided under CPLR 205(a) is not available where the previous action has been terminated by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment on the merits.  A discontinuance effectuated pursuant to either CPLR 3217(a) or (b) constitutes a voluntary discontinuance for purposes of CPLR 205(a). 

Castillo v. Suffolk Paving Corp., NY Slip Op 04239 (2d Dep't August 21, 2024)

Here is the decision.

The doctrine of primary jurisdiction.

The doctrine of primary jurisdiction coordinates the relationship between courts and administrative agencies so that any divergence of opinion between them does not render ineffective the statutes with which both are concerned. The doctrine applies to the extent that the matter before the court is within the agency's specialized field. Under the doctrine, there is concurrent jurisdiction, but where an administrative agency has the necessary expertise to dispose of an issue, the court's involvement awaits resolution of the administrative proceeding.

Calle v. National Grid USA Serv. Co., Inc., NY Slip 04190 (2d Dep't August 14, 2024)

Here is the decision.

Statute of frauds.

Under the statute of frauds, a contract for the sale of real property must be evidenced by a writing, pursuant to General Obligations Law § 5-703[1].  In order to satisfy the statute of frauds, the writing evidencing a contract must identify the parties, describe the subject matter, be signed by the party to be charged, and state all of the essential terms of the agreement. The writing must set forth the entire contract with reasonable certainty so that the substance thereof appears from the writing alone. If the contract is incomplete and it is necessary to resort to parol evidence to ascertain what was agreed to, the remedy of specific performance is not available.

Block 865 Lot 300, LLC v. Baione, NY Slip Op 04189 (2d Dep't August 14, 2024)

Here is the decision.