Medical malpractice.

The elements of a medical malpractice cause of action are (1) a deviation or departure from accepted community standards of practice and (2) that the departure was a proximate cause of the plaintiff's injuries. When moving for summary judgment, a defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. If the defendant makes that showing, the plaintiff, in opposition, must submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden.

Chillious v. Edouard, NY Slip Op 00209 (2d Dep't January 15, 2024)

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Account stated.

An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due. An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account.

Here, the plaintiff established its prima facie entitlement to judgment as a matter of law on the second and fourth causes of action, seeking recovery on an account stated, by submitting evidence that the defendant received and retained, without objection, the invoices that the plaintiff sent to him seeking payment for professional services rendered, setting forth the billable hours expended, and identifying the services rendered. In opposition, the defendant failed to raise a triable issue of fact.

Steven Cohn, P.C. v. Freedman, NY Slip Op 00242 (2d Dep't January 15, 2024)

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Age discrimination claims.

The Appellate Division affirmed the denial of defendants' motion for summary judgment dismissing plaintiff's City Human Rights Law claim based on age discrimination, as the evidence, including plaintiff's own testimony as corroborated by three witnesses, raises issues of fact as to whether plaintiff was treated differently or less well than other employees because of her age. Contrary to defendants' contention, plaintiff does not need to show an adverse employment action in order to establish a prima facie case of discrimination under the City Human Rights Law.

Lopez v. Trahan, NY Slip Op 00274 (1st Dep't January 16, 2024)

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Discovery disputes.

The resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court. Pursuant to CPLR 3126(3), "[i]f any party . . . refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed[,] the court may make such orders with regard to the failure or refusal as are just," including dismissal of the action. This statute broadly empowers a trial court to craft a conditional order, which imposes a sanction, unless, within a specified time, the resisting party submits to the disclosure. If a party fails to comply with the order by the specified date, the conditional order becomes absolute, In order to be relieved of the impact of a conditional order issued pursuant to CPLR 3126, a party must demonstrate a reasonable excuse for their failure to comply with the conditional order and the existence of a meritorious claim or defense.

Winters v. City of New York, NY Slip Op 00245 (2d Dep't January 15, 2024)

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Nondisclosure agreements.

Supreme Court properly concluded that terms of the nondisclosure agreement (NDA) covered all of plaintiff's claims. The language of the NDA is unambiguous as to whether plaintiff agreed to waive future claims, as it expressly specified that plaintiff was releasing claims "arising prior to the signing" of the agreement and claims arising at "any time in the future after the signing" of the agreement. Despite plaintiff's position otherwise, a clause releasing future claims as to the very matter in controversy does not contravene public policy.

Even supposing that the NDA was signed under duress, plaintiff ratified the document by accepting its benefits over a five-and-a-half-year period. As the motion court found, plaintiff received approximately $9 million from defendant after signing the NDA, including a $100,000 stipend that plaintiff received every month throughout the life of the NDA. Plaintiff accepted each payment without protest and only commenced this action seeking to disaffirm the NDA three months after the payments ceased. To this date, plaintiff has not returned any portion of the benefits she received under the NDA.

Ganieva v. Black, NY Slip Op 00271 (1st Dep't January 16, 2024)

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Contract law.

Where a defendant-seller is the party moving for summary judgment dismissing a cause of action for specific performance of a contract for the sale of real property, he has the burden of demonstrating the absence of a triable issue of fact regarding whether the plaintiff buyer was ready, willing, and able to close. In addition, the defendant-seller must demonstrate, prima facie, that the plaintiff buyer was in default.

534 Flatbush Holdings, LLC v. Solaris Props., LLC, NY Slip Op 00207 (2d Dep't January 15, 2024)

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Appellate practice.

The Appellate Division has no discretionary authority to reach an unpreserved issue in the interest of justice in an article 78 proceeding challenging an administrative determination.

Matter of Tsevilsky v. New York State Div. of Hous. & Community Renewal, NY Slip Op 00282 (1st Dep't January 16, 2024)

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Payment on settled actions.

The purpose of CPLR 5003-a is to encourage the prompt payment of damages in settled actions. Under CPLR 5003-a(b), when "the settling defendant is a municipality or any subdivision thereof . . . , it shall pay all sums due to any settling plaintiff within ninety days of tender, by the settling plaintiff to it, of duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff." If the settling defendant fails to pay the sum due under the settlement agreement within 90 days of tender of the required documents, the plaintiff may, without further notice, pursue the entry of a judgment in the amount of the settlement, plus interest, costs, and disbursements. A judgment predicated upon a defendant's failure to make timely payment may not be entered where the plaintiff tenders a defective general release or a defective stipulation of discontinuance following the settlement.

Here, the general releases provided by the plaintiffs were defective. Therefore, the releases were insufficient to trigger the 90-day period within which the defendants were required to make payment of the settlement amount, and, accordingly, the plaintiffs were not entitled to seek a judgment including interest, costs, and disbursements based on nonpayment under CPLR 5003-a(e).

Raymond v. City of New York, NY Slip Op 00120 (2d Dep't January 8, 2024)

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George Washington's Inauguration New York 1789

Arbitrability.

The arbitration clause in the parties' agreement provided that "any unresolved controversy or claim shall be decided by arbitration administered by the American Arbitration Association [AAA], or such other arbitrator as the parties may mutually agree to use." This language, which indicates that the parties did not specifically select the AAA, let alone incorporate its rules, does not demonstrate that the parties clearly and unmistakably submitted the question of arbitrability to an arbitrator, and so the court makes the determination.

Provenance Hotel Partners Fund I, LLC v. GCKC Provenance, LLC, NY Slip Op 00201 (1st Dep't January 14 2024)

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Avoiding service.

Defendants' motion to vacate the default judgments against them is denied, in accordance with CPLR 317. Defendants failed to update their registered forwarding and office addresses with the Secretary of State, even after they were named as defendants and failed to appear in another action in which they were served in accordance with Business Corporation Law § 306, as they were in this action. These facts give rise to an inference that defendants were deliberately attempting to avoid notice of this action.

Moreover, defendants did not demonstrate a meritorious defense to the action in relying on a general release provision in a confidential agreement that settled claims in a California action. That provision released only claims between defendants and plaintiff, who collectively were the defendants in that action, and the claimants in the California action. The release did not apply to claims between plaintiff and defendants themselves.

Any failure by plaintiff to comply with the additional service requirements under CPLR 3215(g)(4)(i) and (ii) does not compel vacatur of the default judgments, as defendants failed to provide grounds for vacatur.

C3 Data, LLC v. 212 Media Group, Inc., NY Slip Op 00182 (1st Dep't January 9, 2024)

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