Discovery disputes.

Before contacting the court regarding a discovery dispute, counsel must consult with one another, in good faith, either in-person or by telephone. If the dispute cannot be resolved other than through motion practice, there must be a supporting affidavit or affirmation attesting to counsel having conducted an in-person or telephonic conference, setting forth the date and time, persons participating, and the length of time of the conference.

Bayview Loan Servicing, LLC v. Evanson, NY Slip Op 04367 (2d Dep't September 11, 2024)

Here is the decision.

The covenant of good faith and fair dealing.

Plaintiff alleges not only breach of contract through failure to meet financial obligations, but, separately, a scheme to divest plaintiff of its interest in the loan at issue by purchasing and foreclosing on a senior loan. Accordingly, plaintiff has stated a claim for breach of the covenant of good faith and fair dealing, which is not duplicative of its contract claim.

Ria R Squared, Inc. v. WD Partners, LP, NY Slip Op 04363 (1st Dep't September 5, 2024)

Here is the decision.

Applicability of the relation-back doctrine.

Application of the doctrine is proper where, as here, a new action has been commenced and consolidated with a prior action. Its application is not limited to those instances where the plaintiff is seeking an amendment of the complaint in the original action. The doctrine may be applied if the party was identified in the prior action but not made a party to that action owing to the plaintiff's failure to comply with the technical requirements for commencing an action.

Picchioni v. Sabur, NY Slip Op 04362 (1st Dep't September 5, 2024)

Here is the decision.

Statutory interpretation.

When presented with a question of statutory interpretation, the court's primary consideration is to ascertain and give effect to the intention of the Legislature. Since the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. Further, a statute must be construed as a whole, and its various sections must be considered together and with reference to each other.

Matter of Winter v. Luft, NY Slip Op 04364 (2d Dep't September 6, 2024)

Here is the decision.

Contract law.

Unambiguous terms of an agreement between sophisticated parties must be enforced pursuant to their plain meaning. unless it would produce a result that is absurd, commercially unreasonable, or contrary to the reasonable expectations of the parties.

GCA Advisors, LLC v. Intersections, Inc., NY Slip Op 04359 (1st Dep't September 5, 2024)

Here is the decision.

Discovery disputes.

The resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is left to the sound discretion of the motion court. Actions should be resolved on their merits whenever possible, and the drastic remedy of striking a pleading or the alternative remedy of precluding evidence should not be employed without a clear showing that the failure to comply with court-ordered discovery was willful and contumacious.

Edwards v. Freedom Church of Revelation, NY Slip Op 04305 (2d Dep't August 28, 2024)

Here is the decision.

Foreclosing a mortgage.

In moving for summary judgment in an action to foreclose a mortgage, the plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default. The plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law. The plaintiff can establish a default by submitting an affidavit from a person having personal knowledge of the facts or other evidence in admissible form. The business record exception to the hearsay rule applies to a writing or record, pursuant to CPLR 4518[a], and it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Without the introduction of the records themselves, a witness's testimony as to the contents of the records is inadmissible hearsay.

Deutsche Bank Natl. Trust Co. v. Pirozzi, NY Slip Op 04304 (2d Dep't August 28, 2024)

Here is the decision.

Finding a pharmacy negligent.

When a pharmacist has demonstrated that he did not undertake to exercise any independent professional judgment in filling and dispensing prescription medication, the pharmacist cannot be held liable for negligence in the absence of evidence that failed to fill the prescription precisely as directed by the prescribing physician or that the prescription was so clearly contraindicated that ordinary prudence required the pharmacist to take additional measures before dispensing the medication. Here, the complaint does not allege that the pharmacy exercised independent professional judgment or that it did not fill the prescriptions as directed. Nevertheless, accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently alleges that the prescriptions were so clearly contraindicated that ordinary prudence required the pharmacy to take additional measures before dispensing the medication. The motion to dismiss is denied.

Bistrian v. Gibson, NY Slip Op 04303 (2d Dep't August 28, 2024)

Here is the decision.

Unsworn submissions.

The unsworn expert report submitted by the defendant in support of his motion for summary judgment dismissing the complaint was insufficient to meet his prima facie burden, pursuant to CPLR 2106 and 3212[b].

Beier v. Giglio, NY Slip Op 04302 (2d Dep't August 28, 2024)

Here is the decision.

Premises liability.

Property owners have a common-law duty to maintain property in a reasonably safe condition, but there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident. However, a condition that is ordinarily apparent to a person making reasonable use of his senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted.

Beier v. Giglio, NY Slip Op 04302 (2d Dep't August 28, 2024)

Here is the decision.

Federal preemption.

Federal preemption is based on the US Constitution's Supremacy Clause. The issue of federal preemption is a question of law,  since it concerns whether, as a matter of statutory interpretation, Congress has enacted a law for which a particular state rule is to the contrary. The inquiry into the scope of a statute's preemptive effect is guided by the rule that the purpose of Congress is the ultimate touchstone in every preemption case. If the statute at issue contains an express preemption clause, the task of statutory construction must, in the first instance, focus on the plain wording of the clause, which necessarily contains the best evidence of Congress's preemptive intent.

Malerba v. New York City Tr. Auth., NY Slip Op 04344 (1st Dep't August 29, 2024)

Here is the decision.