The death of a party and substitution therefor.

The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made, pursuant to CPLR 1015 (a), and any determination rendered without such substitution will generally be deemed a nullity. The death of a party also terminates an attorney's authority to act on behalf of the deceased party.

The determination of a motion for substitution pursuant to CPLR 1021 brought by the successors or representatives of a party or by any party is an exception to the court's lack of jurisdiction upon the death of a party. CPLR 1021 provides that a motion for substitution may be made by any party to the action, and that such a motion must be made within a reasonable time. The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether it has been shown that the action or defense has potential merit. Even if the explanation for the delay is not satisfactory, the court may grant the motion for substitution if there is no showing of prejudice and there is potential merit to the action or defense, in light of the strong public policy in favor of disposing of matters on the merits.

Lee v. Leeds, Morelli & Brown, P.C., NY Slip Op 06624 (2d Dep't December 24, 2024)

Here is the decision.

Appellate practice.

It is well-settled that the mootness doctrine enjoins appellate review of academic questions.  Appellate review of this matter would neither alter the order as appealed from nor directly affect a substantial right or interest of a party to the appeal. Therefore, the appeal must be dismissed as academic.

Davidoff v. Hershfield, NY Slip Op 06559 (2d Dep't December 24, 2024)

Here is the decision.

Attorneys' fees.

The determination of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the Supreme Court. The attorney bears the burden of establishing the reasonable value of the services rendered through contemporaneous time records specifying the date, hours expended, and nature of the work performed. If the documentation is inadequate, the court may reduce the award accordingly.

Hershfield v. Davidoff, NY Slip Op 06558 (2d Dep't December 24, 2024)

Here is the decision.

Summary judgment.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any triable issues of fact. The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers. If there is any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied.

Basil v. Renny, NY Slip Op 06324 (2d Dep't December 18, 2024)

Here is the decision.

Appellate practice.

Defendant's constitutional arguments are beyond consideration by the Appellate Division because they are raised for the first time on appeal. In addition, they are barred by the law of the case, as the precise restrictions in the permanent injunction about which he complains have been affirmed by the Appellate Division.

60 E. 9th St. Owners Corp. v. Zihenni, NY Slip Op 06647 (1st Dep't December 31, 2024)

Here is the decision.

Holy, Healthy, and Happy New Year.

Discovery abuses.

The Appellate Division affirmed the imposition of a $10,000 sanction against defendants for discovery abuses, pursuant to CPKR 3126. Based on the court's admonition at a discovery conference, both parties were on actual notice that the non-prevailing party on a discovery-related motion would be responsible for the legal fees of the prevailing party. In granting plaintiff's motion to compel access to his upstairs neighbor's apartment to perform a water test to determine the source of a persistent leak, the court credited plaintiff's position that the condominium's governing documents vested defendants with the authority to access the unit for inspection and testing when a condition in one unit is causing damage in another unit. Defendants refused to exercise that authority, even after the court noted that the request was proper, requiring plaintiff to have to move to compel discovery. The $10,000 sanction was appropriate.

Etkin v, Sherwood Residential Mgt. LLC, NY Slip Op 06424 (1st Dep't December 19m 2024)

Here is the decision.

Invalidating a release.

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. However, a release may be invalidated for any of the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake. In addition, a release may be set aside on the ground that it was not fairly and knowingly made. This basis for setting aside a release may be applied in situations falling far short of actual fraud' such as when, because the releasor has had little time for investigation or deliberation, or because of overreaching or unfair circumstances, it was deemed inequitable to allow the release to serve as a bar to the claim of an injured party. Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden going forward to the plaintiff to show that there has been fraud, duress, or some other fact which will be sufficient to void the release.

Applewhite v. 112 Liberty Assoc., LLC, NY Slip Op 06323 (2d Dep't December 18, 2024)

Here is the decision.

Waiver of trial by jury.

While the New York Constitution provides for a right of trial by jury, pursuant to NY Const art 1, § 2, it is well-settled that jury waiver agreements are valid and enforceable.

International Business Machs. Corp. v. GlobalFoundries U.S. Inc., NY Slip Op 06425 (1st Dep't December 19, 2024)

Here is the decision.

Injunctive relief.

A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that, absent the injunction, it will suffer irreparable harm. In order to establish prima facie entitlement to a permanent injunction, a plaintiff must demonstrate: (a) that there was a violation of a right presently occurring, or threatened and imminent; (b) that there is no adequate remedy at law; (c) that serious and irreparable harm will result absent the injunction; and (d) that the equities are balanced in its favor. For the purposes of equity, irreparable harm means any injury for which money damages are insufficient.  Where an injury can be adequately compensated by money damages, injunctive relief is inappropriate.

Rockefeller v. Leon, NY Slip Op 06370 (2d Dep't December 18, 2024)

Here is the decision.

Contract law.

The interpretation of an unambiguous contract is a question of law, and collateral estoppel does not bar relitigation of a pure question of law.

Deer Park  Rd. Mgt. Co., LP v. Nationstar Mtge., LLC, NY Slip Op 06422 (1st Dep't December 19, 2024)

Here is the decision.