Suing the Housing Authority.

Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to commencing an action against NYCHA. Pursuant to General Municipal Law § 50-e(5), upon application, the Supreme Court, in its discretion, may extend the time to serve a notice of claim upon a public corporation as required by General Municipal Law § 50-e(1).

In determining whether to grant leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider all relevant circumstances, including whether: (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter; (2) the injured child was an infant at the time the claim arose, and, if so, whether there was a nexus between the infancy and the failure to serve a timely notice of claim; (3) the plaintiff demonstrated a reasonable excuse for the failure to serve a timely notice of claim; and (4) the public corporation was substantially prejudiced by the delay in its ability to maintain a defense on the merits. No single factor is determinative, although it is generally recognized that the question of whether the public corporation timely acquired actual knowledge is of great importance. 

In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory. Here, the record did not demonstrate that NYCHA acquired timely, actual knowledge of the essential facts constituting the claim that the infant plaintiff sustained personal injuries as a result of NYCHA's negligence. Moreover, the plaintiffs failed to provide a reasonable excuse for their failure to serve a timely notice of claim. 

J.B. v. City of New York, NY Slip Op 04755 (2d Dep't October 2, 2024)

Here is the decision.

Indemnification.

A finding of negligence nullifies any common-law indemnity claim.

Ace Am. Ins. Co. v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 04800 (1st Dep't October 3, 2024)

Here is the decision.

Summary judgment motions.

The non-movant's mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to warrant denial of the motion.

Carmona v. Preston, NY Slip Op 04757 (2d Dep't October 2, 2024)

Here is the decision.

Appellate practice.

To the extent that plaintiff seeks affirmative relief, such as sanctions and striking of defendants' answer, in his opposition to defendants' motion to compel, the Appellate Division declines to grant that relief, as plaintiff did not cross-move for it before the motion court.  Similarly, the Appellate Division declines plaintiff's request to vacate prior orders, as plaintiff did not take an appeal from them.

Schwartz v. Mount Sinai Hosp., NY Slip Op 04750 (1st Dep't October 4, 2024)

Here is the decision.

Motions to dismiss.

In order to prevail on a motion pursuant to CPLR 3211(a)(1), the movant's evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. Contracts and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence. 

When reviewing a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. 

Plymouth Capital, LLC v. Montage Fin. Group, Inc., NY Slip Op 04583 (2d Dep't September 25, 2024)

Here is the decision.

Account stated.

An account stated claim is an account balanced and rendered, with an assent to the balance, express or implied, so that the demand is essentially the same as if a promissory note had been given for the balance. A defendant's receipt and retention of invoices seeking payment for goods or services rendered, without objection within a reasonable time, gives rise to an actionable claim.

TH Fashion Ltd. v. Vince Holding Corp., NY Slip Op 04630 (1st Dep't September 26, 2024)

Here is the decision.

Arbitration.

While American Arbitration Association rules delegate to the arbitrator the issue of whether a particular dispute is subject to an arbitration agreement, it is for the courts to determine, in the first instance, whether the parties have entered into a binding agreement to arbitrate.

Matter of Whythe Berry, LLC v. Goldman, NY Slip Op 04632 (1st Dep't September 26, 2024)

Here is the decision.

Contract law.

The elements of a cause of action for tortious interference with a contract are (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procurement of a third-party's breach of that contract without justification; and (4) damages. The plaintiff must further allege facts that are sufficient to show that the contract would not have been breached but for the defendant's conduct.

Plymouth Capital, LLC v. Montage Fin. Group, Inc., NY Slip Op 04583 (2d Dep't September 25, 2024)

Here is the decision.

Warranty of habitability.

The breach of the warranty of habitability counterclaim was dismissed because it only applies to a tenant living in the apartment, not a commercial tenant like defendants.

20 Broad St. Owner, LLC v. Sonder USA, Inc., NY Slip Op 04591 (1st Dep't September 26, 2024)

Here is the decision.

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)

Here is the decision.