Vacatur of a default.

The Appellate Division affirmed the denial of defendants motion to vacate the default judgment.Contrary to defendants' contention that the action should be dismissed under CPLR 306-b, the summons and complaint were timely served considering the executive orders tolling the time limit for service of process during the COVID-19 pandemic.

Supreme Court providently declined to vacate the default under CPLR 317 where service of process on corporate defendants was properly made by means of service upon the Secretary of State, and defendants failed to demonstrate lack of actual notice of the action. Defendants' sworn admission of their awareness of plaintiff's lawsuit, and their subsequent participation in settlement negotiations, manifests actual notice of the action. 

Supreme Court providently denied defendants' motion under CPLR 5015(a)(1) for failure to provide a reasonable excuse for their default. Defendants' denials of receipt of service, without proof, fall short of creating reasonable excuse. Furthermore, defendants' claim that the parties were involved in settlement negotiations does not constitute a reasonable excuse.

4CS Ltd v Kahiri Diamonds Ltd, NY Slip Op 04513 (1sr Dep't September 24, 2024)

Here is the decision.

Change of venue.

A demand to change venue based upon the designation of an improper county must be "served with the answer or before the answer is served," pursuant to CPLR 511[a]. Here, since no demand to change venue was served with the answer or before the answer had been served, that branch of the defendants' motion which was to change venue on the ground that the county designated was improper, pursuant to CPLR 510[1], was untimely. The defendants were not entitled to change venue as of right, and their motion became one addressed to the Supreme Court's discretion. The Supreme Court improvidently exercised its discretion in granting that branch of their motion which was to change venue, since the defendants failed to demonstrate that they moved promptly for a change of venue after the plaintiff testified at his deposition that he lived at an address in Richmond County.

Aguilar v. Reback, NY Slip Op 04444 (2d Dep't September 18, 2024)

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Fraud by omission.

Fraud by omission claims that are not supported by a duty to speak will be dismissed.

Solidx Mgt., LLC v. Vaneck Sec. Corp., NY Slip Op 04489 (1st Dep't September 19, 2024)

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Motions to dismiss.

A motion to dismiss on the ground that the action is barred by documentary evidence, pursuant to CPLR 3211(a)(1), may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Adelson v. Sharkey, NY Slip Op 04443 (2d Dep't September 18, 2024)

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Service on a corporation.

Pursuant to CPLR 317, a party that was not personally served may defend against an action if it demonstrates that it did not have notice of the action in time to defend and that it has a meritorious defense. Service on a corporation through delivery of the summons and complaint to the Secretary of State is not personal delivery to the corporation.

Here, the defendant established its entitlement to relief from its default under CPLR 317 by demonstrating that the address on file with the Secretary of State at the time the summons and complaint were served was incorrect and, consequently, that it did not receive actual notice of the action in time to defend itself. Further, the evidence does not suggest that the defendant's failure to update its address with the Secretary of State constituted a deliberate attempt to avoid service of process, and there is some evidence in the record suggesting that the plaintiff had knowledge of the defendant's actual business address.

In addition, the defendant demonstrated the existence of potentially meritorious defenses to the causes of action, including a defense based on the general release that terminated the earlier action.

Galatro v. Lake Pointe Owners, Inc., NY Slip Op 04375 (2d Dep't September 11, 2024)

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Expert opinions.

An expert's competence in a particular subject may derive from long observation and real-world experience, and is not dependent on formal training or having an academic degree in the subject. Where the expert's factual conclusions partially contradict a plaintiff's deposition testimony, the expert opinion is still sufficient to defeat summary judgment where the opinion is based on other record evidence and is neither speculative nor conclusory.

Cameron v. Palmeri, NY Slip Op 04371 (2d Dep't September 11, 2024)

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Premises liability.

In a premises liability case, the defendant can establish prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of an injury without engaging in speculation.  However, in order to withstand summary judgment, the plaintiff need only raise a triable issue of fact regarding whether defendant's conduct proximately caused plaintiff's injuries.

Here, the defendant met the prima facie burden by submitting the reports of two fire departments, which determined that the cause of the fire at issue was undetermined. However, in opposition, the plaintiff raised a triable issue of fact as to the cause of the fire by submitting an expert' opinion as to the area of the fire origin and that the electrical wiring was the cause of the fire. The opinion was amply supported by the record and was neither speculative nor conclusory. 

Further, the defendant failed to establish, prima facie, that the plaintiff's conduct was a superseding cause of the injuries. The plaintiff's decision to enter the home to put out a fire that he reasonably believed was contained to just the portion of the AC unit that was outside the home was not so obviously fraught with danger that its very nature evidences a wanton disregard for the actor's own personal safety or well-being.

Cameron v. Palmeri, NY Slip Op 04371 (2d Dep't September 11, 2024)

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Negligence actions.

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 it is for the trier of fact to determine the issue of proximate cause. However, proximate cause may determined as a matter of law where the defendant's negligence merely created the opportunity for, but did not cause, the event that resulted in harm to the plaintiff.

Bristol v, Biser, NY Slip Op 04370 (2d Dep't September 11, 2024)

Here is the decision.

Laches.

Laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party. In order to establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of; (2) delay by the complainant in asserting a claim for relief despite the opportunity to do so; (3) lack of knowledge or notice on the part of the offending party that the complainant would assert a claim for relief; and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant. Here, the defendant established that the plaintiffs' more than 10-year delay in seeking to void the defendant's mortgage, together with the prejudice to him by the delay, as he relied on the mortgage as payment for his legal services, warranted application of the doctrine of laches.  The defendant's motion to dismiss the complaint is granted.

Bricker v. Ole Thorsen, NY Slip Op 04369 (2d Dep't September 11, 2024)

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Vacatur.

CPLR 5015(a)(1) permits the vacatur of an order rendered as a result of excusable default.  Bare allegations of law office failure are insufficient to warrant vacatur.

Bengas v. Ardsley Country Club, Inc., NY Slip Op 04368 (2d Dep't September 11, 2024)

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Slips-and-falls.

In a slip-and-fall case, the defendant property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence.. 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 defendant's employees to discover and remedy it.  In order to meet its prima facie 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.

Arbit v. Costco Wholesale Corp., NY Slip Op 04366 (2d Dep't September 11, 2024)

Here is the decision.