The death of a party.

Generally, the death of a party divests a court of jurisdiction to act and automatically stays proceedings pending the substitution of a personal representative for the decedent. In most instances, a personal representative appointed by the Surrogate's Court should be substituted in the action to represent the decedent's estate. However, where a property owner dies intestate, title to real property is automatically vested in the decedent's distributees.

2911 Mgt., LLC v. Davis, NY Slip Op 01074 (2d Dep't February 26, 2025)

Here is the decision.

Premises liability.

Plaintiff made a prima facie showing that defendant violated its duty under Administrative Code of the City of New York § 7-210 to maintain the sidewalk abutting its property in a reasonably safe condition by failing to repair the raised sidewalk flag on which plaintiff tripped. Plaintiff established that defendant had actual knowledge of the defective condition by submitting the deposition testimony of defendant's superintendent, who testified that he first saw the height differential between the sidewalk flags about two years before plaintiff fell.

Plaintiff established the location of the raised sidewalk flag by drawing a circle on the photograph marked at his deposition and testifying that the circle encompassed the exact location where he fell. Plaintiff also established that the height of the raised sidewalk constituted a tripping hazard by submitting his investigator's affidavit that he went to the accident location about 12 days after plaintiff fell and took photographs that fairly and accurately show the sidewalk's condition. Those photographs show that there was a vertical grade differential between the adjacent sidewalk flags of at least one inch, which constitutes a tripping hazard under Administrative Code § 19-152(a)(4) and the Rules of City of New York Department of Transportation (34 RCNY) § 2-09(f)(5)(iv). In opposition, defendant submitted no evidence that raised a triable issue of fact as to where plaintiff fell or regarding the height differential between the sidewalk flags.

Plaintiff's motion for summary judgment on the issue of liability is granted.

Volquez v. Bronx 2120 Crotona Ave., L.P., NY Slip Op 01072 (1st Dep't February 25, 2025)

Here is the decision.

Affirmative defenses.

In this personal injury action, the affirmative defense based on the plaintiff's culpable conduct is dismissed because the record bears no indication that the plaintiff contributed in any way to the accident.

Walcott v. Wheels, Inc., NY Slip Op 01073 (1st Dep't February 25, 2025)

Here is the decision.

An application for restitution.

CPLR 5015(d) provides that, "[w]here a judgment or order is set aside or vacated, the court may direct and enforce restitution in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal." Thus, CPLR 5015[d] empowers a court that has set aside a judgment or order to restore the parties to the position they were in prior to its rendition, consistent with the court's general equitable powers. The essential inquiry for a court addressing a request for the equitable remedy of restitution is whether it is against equity and good conscience to permit a party to retain the money that is sought to be recovered. The determination whether to award restitution is committed to the trial court's discretion.

Hamway v. Sutton, NY Slip Op 01062 (1st Dep't February 25, 2025)

Here is the decision.

Motions to dismiss.

Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based on the doctrine of res judicata or collateral estoppel. Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding. The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action and decided against that party or those in privity, whether or not the tribunals or causes of action are the same.

Here, the issues raised in the instant action as to the defendants' alleged violation of Judiciary Law § 487 could not have been raised in a prior action between the parties and were not necessarily decided in the prior action. Thus, neither res judicata nor collateral estoppel bars the plaintiffs from litigating the instant Judiciary Law § 487 cause of action.

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law. Under Judiciary Law § 487(1), an attorney who is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party is guilty of a misdemeanor and may be liable to the injured party for treble damages in a civil action. Here, the defendants' evidentiary submissions failed to utterly refute the plaintiffs' factual allegations that the defendants violated Judiciary Law § 487.

Altman v. Orseck, NY Slip Op 00940 (2d Dep't February 19, 2025)

Here is the decision.

Restoring a case to the calendar.

When a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27. In the absence of those two circumstances, the court need not consider whether the plaintiff had a reasonable excuse for failing to timely file a note of issue.

Adams v. Frankel, NY Slip Op 00939 (2d Dep't February 19, 2025)

Here is the decision.

Indemnification and contribution.

Common-law indemnification involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another person who should more properly bear responsibility for that loss. The key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but, rather, is a separate duty owed to the indemnitee by the indemnitor. The predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee.

In order to sustain a third-party cause of action for contribution, a third-party plaintiff is required to show that the third-party defendant owed it a duty of reasonable care independent of its contractual obligations, if any, or that a duty was owed to the plaintiffs as injured parties and that a breach of that duty contributed to the alleged injuries. Under the latter theory of contribution, all that is required is that two people be held liable for the same injury.

25-86 41st St., LLC v. Chong, NY Slip Op 00938 (2d Dep't February 19, 2025)

Here is the decision.

Attorneys' fees.

Plaintiffs' first cause of action is dismissed to the extent that it seeks attorneys' fees. Plaintiffs may not rely on defendant's confession of judgment, executed on May 28, 2020, to collect attorneys' fees. The instrument confessed judgment for, among other things, "reasonable attorney's fees incurred to enforce the judgment." However, on August 13, 2019, the Legislature amended CPLR 3218 to prohibit a party from enforcing a confession of judgment against a non-resident of New York State such as defendant. The confession also was not an agreement to pay attorneys' fees, but, at most, was merely evidence of an agreement.

Nor may plaintiffs rely on the parties' settlement agreement to obtain attorneys' fees. The agreement provided that in the event of a default of any settlement payment, plaintiffs "may file a confession of judgment" for the amount owed, plus interest, costs, "and reasonable attorney's fees actually incurred to enforce the judgment." Thus, the parties agreed that plaintiffs could receive attorneys' fees through the filing of the confession of judgment, which plaintiffs did not file. Moreover, the settlement agreement contemplated that plaintiffs could obtain attorneys' fees through, and only through, the process of enforcing the confession of judgment. Plaintiffs did not use that process; instead, they brought this plenary action to enforce the settlement agreement. Absent any agreement, statute, or rule allowing plaintiffs to collect attorneys' fees for enforcing the settlement agreement, plaintiffs cannot obtain them.

Upfront Megatainment, Inc. v. Thiam, NY Slip Op 00932 (1st Dep't February 18, 2025)

Here is the decision.

Contract law.

The cause of action for tortious interference with contract is dismissed because there was no breach of contract.

Vigliano Assoc., Ltd. v. Gaines, NY Slip Op 00934 (1st Dep't February 18, 2025)

Here is the decision.

Res judicata.

Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding. A party seeking to assert res judicata must show the existence of a prior judgment on the merits between the same parties, or those in privity with them, involving the same subject matter. Here, the defendants established, prima facie, that the claims raised by the plaintiff in this action were previously presented in the administrative proceeding and the subsequent CPLR article 78 proceeding. Although the administrative order of disposition was entered upon the defendants' failure to appear at the administrative hearing, a default judgment is a judgment on the merits.

Alarcon v. Henry, NY Slip Op 00838 (2d Dep't February 13, 2025)

Here is the decision.

Motions for recusal.

Allegations that a judge is biased or prejudiced must be based upon something other than rulings in the case.

McNaughton v. 5 W. 14 Owners Corp., NY Slip Op 00831 (1st Dep't February 13, 2025)

Here is the decision.