Even after expiration of the one-year limitations period set forth in CPLR 5015, a court may vacate its own order or judgment for sufficient reason and in the interest of substantial justice. There is no basis for an extension of the one-year period where the party seeking the extension fails to demonstrate a reasonable excuse for a lengthy delay in moving to vacate the order or judgment.
U.S. Bank N.A. v. Tait, NY Slip Op 00344 (2d Dep't January 22, 2024)
Under the storm-in-progress doctrine, a property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter.
Wechsler v. Ave. L, LLC, NY Slip Op 00347 (2d Dep't January 22, 2024)
In this foreclosure action, the Appellate Division affirmed the granting of plaintiff's motion for summary judgment dismissing defendant's affirmative defenses and counterclaims.
Defendant did not establish that plaintiff or its predecessor lenders or servicers frustrated her performance under the terms of the subject note and mortgage. While she may have experienced frustration in dealing with various lenders and servicers, she proffers no evidence that they prevented or frustrated her from making payments on the indebtedness or rejected or returned payments.
Defendant's claim of estoppel is unsubstantiated. In order to establish an estoppel, a party must prove that it relied upon another's actions, its reliance was justifiable, and that, in consequence of such reliance, it prejudicially changed its position. Here, there is nothing in the record that reflects any representation by plaintiff or its predecessors that would have induced defendant's reliance in obtaining a new modification agreement. There are no representations that plaintiff or its predecessors promised to modify her loan, and to the extent defendant claims that delay in processing her loan modification applications increased her indebtedness, any dispute about the amount owed would be resolved by a referee and does not affect the validity of the mortgage. For the same reason, defendant's claim of offset was dismissed.
Defendant's claim that plaintiff or its predecessors violated General Business Law § 349 is likewise unavailing. An act or practice is consumer-oriented when it has a broader impact on consumers at large. Conduct must extend beyond a particular contractual relationship, because the consumer-oriented element precludes a General Business Law § 349 claim based on private contract disputes, unique to the parties. Defendant alleges only purported actions taken against her related to her loan, not actions that were recurring and harmful to the public at large.
Nor has defendant raised any triable issues of fact with respect to her claim that plaintiff or its predecessors breached the terms of the note and mortgage. The correspondence submitted in support of her claim reflects that plaintiff and its predecessors explained changes in monthly payments and provided loan payment histories and escrow statements. The motion court's dismissal of both the breach of contract claim and the breach of the covenant of good faith and fair dealing defense was likewise not in error, as the allegations for each were duplicative and similarly unavailing.
Nor does the defense of unclean hands survive. Even accepting the truth of defendant's allegations, plaintiff was under no obligation to modify the loan or respond to defendant's questions consistent with her time frame, and there is nothing immoral or unconscionable about its decision to proceed with foreclosure.
Defendant's fraud defense, in which she claims that plaintiff told her that her loan modification would be reviewed, inducing her reliance on a timely response and foreclosing opportunities to obtain other financing, lacks evidentiary support that plaintiff made any specific representations to her in that regard, much less any material misrepresentations of fact, a necessary component of a fraud claim.
As defendant's counterclaims are largely reflective of her affirmative defenses, they suffer from the same issues, and were also properly dismissed.
Deutsche Bank Natl. Trust Co. v. Marino, NY Slip Op 00374 (1st Dep't January 23, 2024)
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. The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence. 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 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. A culpable state of mind for the purposes of a spoliation sanction includes ordinary negligence. However, in the absence of pending litigation of notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices.
Gordon v. Field, NY Slip Op 00308 (2d Dep't January 22, 2024)
The parties' conflicting expert affidavits raise issues of fact and credibility that cannot be resolved on a motion for summary judgment.
Legrand v. USC-NYCON, LLC, NY Slip Op 00379 (1st Dep't January 23, 2024)
Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time to effect service for good cause shown or in the interest of justice. In order to establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. If good cause for an extension is not established, courts must consider the broader interest of justice standard of CPLR 306-b. Under the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant.
21st Mtge. Corp. v. Akter, NY Slip Op 00413 (2d Dep't January 29, 2024)
As a general rule, when lands described in a conveyance are bounded by a street, highway or road, the conveyance is deemed to pass title to the center of the abutting roadway. The centerline presumption can be rebutted by a showing that the grantor intended to limit the grant to the edge of the road. An instrument creating or transferring an estate or interest in real property must be construed according to the parties' intent, so far as it can be gathered from the whole instrument and is consistent with the rules of law. Where the language used in a deed is ambiguous so that it is susceptible of more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances.
2832 Linden Blvd. Realty, LLC v. Health Ins. Plan of Greater N.Y., NY Slip Op 00302 (2d Dep't January 22, 2024)
Plaintiff failed to demonstrate prima facie that defendants had constructive notice of the alleged defect in the sidewalk abutting their building, since plaintiff and representatives of defendant all testified that they never noticed any sidewalk defect in the four years before plaintiff's accident. Plaintiff testified that certain photographs accurately depicted the condition in the area of her accident at the time she tripped and fell, rendering those photographs admissible. The parties' testimony and the photographs, which show a visible line or gap across the sidewalk, thus present an issue of fact as to whether the alleged sidewalk defect was sufficiently visible and apparent to permit defendant's employees to discover and remedy it. The court properly declined to consider Google map photos taken two or more years before the accident, absent any evidence that those photos represent the condition of the sidewalk on the date of the accident.
The court denied plaintiff's motion to strike the affirmative defense of comparative negligence. In light of plaintiff's testimony that she did not see the sidewalk because she was looking straight ahead, it is for the jury to consider whether plaintiff failed to see the sidewalk defect, thereby contributing to her accident.
Plaintiff's motion for summary judgment on the issue of liability is denied.
Yanky v. 2839 Bainbridge Ave. Assoc., LLC, NY Slip Op 00301 (1st Dep't January 21, 2024)
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)
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)
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)