Court holiday.

The efficacy of affidavits.

Factual affidavits do not constitute documentary evidence within the meaning of CPLR 3211(a)(1). Where the affiant offers no basis to find personal knowledge of the facts stated therein, the affidavit is without probative value.

Juman v. Cape Church Assoc., LLC, NY Slip Op 05281 (1st Dep't October 24, 2024)

Here is the decision.

Premises liability.

An out-of-possession landlord is not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or a course of conduct by the landlord giving rise to a duty.

Greco v, St. Bridget's Church at Westbury, Queens Co., NY Slip Op 05203 (2d Dep't October 23, 2024)

Here is the decision.

Vacating a default judgment.

Plaintiff's motion to vacate a default judgment dismissing the complaint is denied.

Notwithstanding plaintiff's showing of merit, he failed to demonstrate a reasonable excuse for failing to oppose the City's motion to dismis. While plaintiff's counsel adequately explained the failure to respond to the hard copy of the City's motion, counsel failed to explain why he did not e-file a notice of appearance, thereby ensuring he would have received notice of the motion to dismiss via the court's e-filing system, until November 2021, well after he informed the City of his representation of plaintiff. This occurred after he received plaintiff's file, which he suggested he needed to properly address this case.

Moreover, counsel's failure to respond to the City's motion was part of a larger pattern of neglect. Plaintiff has not explained why his second and third counsel did not fully comply with a September 3, 2020 discovery order until March 2023, when current counsel filed his motion to vacate. Plaintiff also has not explained why, after his current counsel learned of the March 2022 order of dismissal and failed to reach plaintiff by phone, counsel did not notify plaintiff of the order by mail or seek to vacate the default until almost a year after notice of entry of the order.

Bey v. City of New York, NY Slip Op 05274 (1st Dep't October 24, 2024)

Here is the decision.

Claims of unfair competition, tortious interference, and defamation.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true, and the plaintiff is to be afforded every favorable inference. However, allegations consisting of bare legal conclusions and factual claims that are inherently incredible are not entitled to a favorable inference. Further, dismissal pursuant to CPLR 3211(a)(7) is warranted when the plaintiff fails to assert facts in support of an element of the claim or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.

Here, the plaintiff failed to assert facts in support of the elements of an unfair competition cause of action. The plaintiff did not allege any facts that could be construed as palming off or misappropriation, either one of which is a required element of an unfair competition cause of action. Dismissed.

Similarly, the plaintiff failed to assert facts to support the elements of the cause of action alleging tortious interference with contract. The cause of action requires allegations of the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third-party's breach of the contract without justification, actual breach of the contract, and damages resulting therefrom. The plaintiff failed to allege the existence of any third-party agreement. Dismissed.

The plaintiff also failed to state a cause of action alleging tortious interference with business relations. In order to prevail on the claim, a plaintiff must prove: (1) that it had a business relationship with a third party; (2) that the defendant knew of that relationship and intentionally interfered with it; (3) that the defendant acted solely out of malice or used improper or illegal means that amounted to a crime or independent tort; and (4) that the defendant's interference caused injury to the relationship with the third party. The plaintiff failed to allege facts to indicate that the defendants acted solely out of malice and/or used improper or illegal means in removing her from stroke rounds. Dismissed. 

The plaintiff also failed to state a defamation cause of action. The plaintiff's allegations were insufficient in that they failed to allege the particular words complained of, pursuant to CPLR 3016[a], the time, place, and manner of publication, or the person or persons to whom the statements were allegedly made. Dismissed.

Delanerolle v. St Catherine of Sienna Med. Ctr., NY Slip Op 05201 (2d Dep't October 23, 2024)

Here is the decision.

Legal malpractice.

In order to sustain a cause of action for legal malpractice, the plaintiff must show that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. An attorney's conduct or inaction is the proximate cause of a plaintiff's damages if but for the attorney's negligence the plaintiff would have succeeded on the merits of the underlying action. or would not have sustained 'actual and ascertainable damages. A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing that he did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, or that the claimed departure did not proximately cause the plaintiff to sustain damages.

D'Angelo v. Kujawski, NY Slip Op 05200 (2d Dep't October 23, 2024)

Here is the decision.

Discovery.

CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution . . . of an action." The phrase "material and necessary" should be interpreted liberally, and the test is one of usefulness and reason. It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims, and unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy. The supervision of discovery and the setting of reasonable terms and conditions for disclosure are within the sound discretion of the trial court.

The Supreme Court providently exercised its discretion in granting the subject branch of the plaintiff's prior motion to the extent of directing the defendants to produce documents related to all gap-related studies, reports, accidents, and/or injuries occurring anywhere within the New York City subway system for three years prior to the date of the accident at issue. The plaintiff established that access to these documents may yield information material and necessary to the prosecution of the action, including information related to the defendants' notice of the alleged dangerous condition that caused her accident and their duty to the plaintiff.

Chacon v. New York City Tr. Auth., NY Slip Op 05199 (2d Dep't October 23, 2024)

Here is the decision.

Motions to dismiss.

A motion to dismiss pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations and conclusively establishes a defense to the claims as a matter of law. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case. In order to be considered documentary, the evidence must be unambiguous and of undisputed authenticity. Letters, emails, and affidavits are not documentary evidence. An affidavit is not documentary evidence because its contents can be controverted by other evidence, such as another affidavit.

Cajahuanca v. City of New York, NY Slip Op 05198 (2d Dep't October 23, 2024)

Here is the decision.

Motions to renew.

The Appellate Division determined that the Supreme Court providently exercised its discretion in denying petitioner's renewal motion, pursuant to CPLR 2221[e][2].  Petitioner failed to support its application with new facts or information which could not have been readily and with due diligence made part of the original motion, and the court properly concluded that petitioner's submissions would not change its prior determination.

Matter of Barons Media, LLC v. Shapiro Legal Group, PLLC, NY Slip Op 05301 (1st Dep't October 24, 2024)

Here is the decision.

Contract law.

Buyer made a prima facie showing that it was entitled to judgment as a matter of law on seller's claim for reformation of the parties' real estate purchase and sale agreement based on a theory of either mutual mistake or a scrivener's error. Reformation based upon a scrivener's error requires proof of a prior agreement which, when subsequently reduced to writing, fails to accurately reflect the prior agreement. Here, there is no evidence of a prior oral agreement inconsistent with the written documents. Indeed, seller's representative testified that there was no oral agreement. Moreover, the real estate transfer documents, as well as the contract, all of which were prepared by seller's counsel, repeatedly and consistently included the description, by address, metes and bounds, and block and lot number, of the vacant lot that is the subject of the reformation action. This is inconsistent with a claim that the inclusion of the vacant lot was an inadvertent or isolated scrivener's error.

A claim for reformation based on mutual mistake must be supported by clear and convincing evidence that the agreement did not accurately express the parties' intention. A mutual mistake must exist at the time the agreement is signed. The evidence offered by seller - that a year before the closing, the parties did not intend to include the vacant lot in the transaction - substantially predated the parties' final agreements. Both buyer and its counsel affirmed that, by the time of the closing, the vacant lot was included in the sale. Their understanding was supported by the deed, which included the vacant lot, other closing documents drafted by the seller, and the fact that the vacant lot and the two adjoining properties included in the purchase were all subject to the same regulatory agreement with the City of New York. Furthermore, after the closing, buyer, not seller, paid all the carrying costs of the property, including taxes. In addition, seller waited three years to seek reformation, which is persuasive evidence of the agreed intention of the parties.

ACP Hous. Assoc., L.P. v. ABJ Milano, LLC, NY Slip Op 05272 (1st Dep't October 24, 2024)

Here is the decision.

Service on a foreign corporation.

Pursuant to CPLR 311(a)(1), service upon a foreign corporation shall be made by delivering the summons "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service."  In addition, service may be made upon someone whom the corporation cloaks with authority. The burden of proving that personal jurisdiction has been acquired over a defendant rests with the plaintiff. The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void.

Bold Broadcasting, LLC v. Wawaloam Reservation, Inc., NY Slip Op 05196 (2d Dep't October 23, 2024)

Here is the decision.