Domestic violence.

The standard for a court's finding of neglect based on domestic violence against a child's mother is preponderance of the evidence, pursuant to Family Court Act §§ 1012[e][iii].

Matter of A.A. (Carlos B.), NY Slip Op 05822 (1st Dep't November 21, 2024)

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Attorneys' fees.

While Business Corporations Law § 626(e) provides that a successful plaintiff in a shareholders' derivative action may recoup legal expenses and attorneys' fees from the proceeds of a judgment, compromise, or settlement in favor of the corporation, it does not authorize the imposition of such expenses on the losing party. Here, the cause of action for attorneys' fees is dismissed.

Schmidt v. Board of Directors of Duane Owners, Inc., NY Slip Op 05778 (1st Dep't November 19, 2024)

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Court holiday.

Appellate practice.

There is no appeal from a court's comments that are dicta.

Matter of Johnson, NY Slip Op 05768 (1st Dep't November 19, 2024)

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Motions for summary judgment.

While a plaintiff is not required to establish freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence and culpable conduct on the part of the plaintiff.

Houston v. McQuiller, NY Slip Op 05594 (2d Dep't November 13, 2024)

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Appellate practice.

While the motion court purportedly denied the motion for reargument, it effectively granted the motion by addressing the merits. Accordingly, the order is appealable, pursuant to CPLR 5701[a][2][viii].

Pierre v. City of New York, NY Slip Op 05652 (1st Dep't November 14, 2024)

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Spoliation.

Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126. A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense.

Myung Ja Wang. v. New York City Tr. Auth., NY Slip Op 05591 (2d Dep't November 13, 2024)

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Summary judgment.

A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated, pursuant to CPLR 3212[f]. This is especially so where the motion for summary judgment was made prior to the parties conducting depositions.

Kharyshyn v. West End 82, LLC, NY Slip Op 05586 (2d Dep't November 13, 2024)

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Appellate practice.

Plaintiff's appeal of the judgment does not bring up for review the motion court's prior order, granting summary judgment for the individual defendants, as it was a final order that dismissed all claims asserted against them as guarantors of the tenant's lease obligations. The subsequent entry of judgment was a mere ministerial act that did not excuse plaintiff's failure to file a notice of appeal of the summary judgment order.

Roc-Le Triomphe Assoc., LLC v. DeSouza, NY Slip Op 05644 (1st Dep't November 14, 2024)

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The single motion rule.

The motion to dismiss did not violate the single motion rule, pursuant to CPLR 3211[e], because defendants' prior motion to dismiss was not decided on the merits.

2497 Realty Corp. v. Fuertes, NY Slip Op 05624 (1st Dep't November 14, 2024)

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Motions to dismiss.

Pursuant to CPLR 3211(a)(2), a party may move to dismiss a cause of action on the ground that the court lacks subject matter jurisdiction. The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is a substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs.  However, civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution. Here, the defendants failed to demonstrate that the causes of action alleging negligence and negligent hiring, retention, and supervision insofar as asserted against them cannot be determined solely upon the application of neutral principles of law, without reference to religious principles.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Pursuant to CPLR 3211(a)(1), dismissal is warranted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Escobar v. Segunda Iglesia Pentecostal Juan 3:16 Asamblea de Dios, NY Slip Op 05583 (2d Dep't November 13, 2024)

Here is the decision.